By Raghavendra Pratap Singh, National University of Advanced Legal Studies, Kochi
“Editor’s Note: In a situation when two statutes come into conflict and neither of them are clear, then the statute which was enacted later prevails. This is known as presumption against repeal by implication. This article discusses this doctrine of statutory interpretation.”
Presumption is basically a legal inference or assumption that a fact exists based on known or proven existence of some other facts. William P. Richardson in his book ‘The Law of Evidence’ defines presumption to be an inference as to the existence of one fact from existence of some other fact founded upon a previous experience of their connection.
Repeal has been defined as an abrogation of existing law by a legislative act. Further repeal has been divided into two- Express repeal and Implied repeal.
Sometimes the laws made by the legislature come into conflict among itself. When two statutes come into conflict and neither of the statute is more specific than other then the later enacted statute supervises another. The later enacted statute repeals the former and this principle is called as repeal by implication.[i] Presumption against repeal by implication opposes the later enacted statute rule, and gives importance on clear statement rule by express provision to repeal.
Meaning of Statute and its Repeal
A statute is of two types-Perpetual statute and Temporary statute. A perpetual statute is that statute for which no time limit is fixed for its duration[ii], and such statute remains in force unless it is repealed. A statute is temporary when its duration is for a specific period of time[iii], and that statute expires on the specific time unless it repealed earlier to its expiry. Once a temporary statute expires then it cannot be made effective only by amending it but it has to be re enacted with the procedure of constitution. When a temporary act expires then section 6 of the General Clauses Act 1897,[iv] does not apply on that act. The Government of India repealed the subsection (4) of section 102,[v] of Government of India Act, 1935 by Article 395 of Constitution without saving any clause and section 6 of General Clause Act has no application to this. One of the questions raised before Federal Court was whether the prosecution terminated after expiry of the act. The matter came up before the court and following the decision of House of Lords in Wicks v. DPP,[vi] the Federal court held that the prosecution could be continued.
Types of Repeal
A power to make laws rest with the parliament or state legislature, and power to altercation and repeal also lies with it. However a legislature has no power to bind itself or its successors as to the course of future legislation by curtailing its law making power conferred by the constitution. In the case Ellen Street Estate Ltd. v. Minister of Health[vii],A similar argument was raised as inVauxhall Estateas to the provisions for compensation arising under the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Acts 1925 and 1930. In this case The Housing Acts impliedly repealed the 1919 Act in so far as the later Acts were inconsistent with the earlier Act. So Maugham LJ, ruled that-
“The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If parliament chooses, in a subsequent act, to make it perfectly plain that previous one is being to some extent repealed or abrogated, that must have effect, because it is the will of legislature.”
An act therefore may be repealed by a later but no repeal can be brought about ‘unless there is an express repeal of an earlier act by the later act, or unless the two acts cannot stand together’[viii]. A repeal may be by express words of a later statute or may be implied of the provisions of earlier statute with later one.
The use of any particular form is not necessary, but all that necessary is the words used show an intention to abrogate the act in question. Generally the words ‘is or are hereby repealed’ or “shall cease to have effect” is used by the legislature to repeal the previous statute with the later one. When a portion of an act should have to be repealed then ‘shall be omitted’ word is used generally. So there is not a much difference between an amendment or repeal of an statute.
In Shambhu Dayal v. State of Uttar Pradesh[ix] it was held that the amending act 49 of 1964 which substituted new sections 8 and 9 in the Prevention of Food Alteration Act, 1954 has not effect of repealing the original sections 8 and 9 and therefore the appointment of Food Inspector under the original section 9 continued…. The legislature sometime does not enumerate the acts sought to be repealed, and only says that ‘all provisions in consistent with this act’ are hereby repealed. With respect to such a repealing provision, it has been said that it merely substitutes for the uncertainty of general law and express provision of equal uncertainty, and in determining whether a particular earlier provision is repealed by such a repealing provision on the ground of inconsistency with it, the same principle which are applicable in determining a question of implied repeal have to be applied. Another equally uncertain formula is when the later act provides that a particular earlier act ‘shall to the extent necessary to give effect to the provisions of this act be deemed to have been repealed or modified’. There will however be no correspondence and therefore no repeal, where the two acts are substantially of different scopes. But if the act extended covers the entire subject of earlier act and also deals with other subjects, the earlier act will still be corresponding act and shall stand repealed. It is also possible that there may be partial correspondence resulting in partial repeal.[x]
The doctrine of implied repeal is a concept in constitutional theory which states that where an ‘Act of Parliament’ or an ‘An act of Congress’ conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e., no longer law). This doctrine is expressed in the Latin phrase “leges posteriores priores contrarias abrogant” (more recent law overwrites earlier law that say differently).[xi]
There is a 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 repealing provision, it gives out an intention not to repeal the existing legislation. 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 strengthened on the principle ‘expressio unius est exclusio alterius’ (the express mention of one thing excludes all other). [xii]
In the U.K. case of Thobum v. Suderland City Council (also called as Metric Martyrs case), Lord Justice Laws ruled that some constitutionally significant statutes held a higher status in UK law and were not subject to the doctrine of implied repeal and would therefore require Parliament to expressly repeal the Act.[xiii]
When the law defining the offences come into question, and later statute imposes or varies the procedure from the earlier laws, then the earlier statute is repealed by implication. Section 26 of The General Clauses Act, 1897 defines that-“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.” Article 20 (2) of The Constitution of India defines the same-“No person shall be prosecuted and punished for the same offence more than once.” Both these provisions apply only when the offences under two statutes are same.
History of Presumption against Repeal by Implication
17th Century to 18th Century Approach:-
The principle of presumption against repeal by implication emerged in seventeenth century in England. The first case cited by Sir Edward Coke on Dr. Foster Case in 1614 in a report on statutory interpretation as foundational authority for the presumption against implied repeals. In this case Coke considers the relationships between Elizabethan statute and Jacobean statute providing different punishments for conviction as recusants. In his acknowledgement Coke first analyzes the later enacted statute rule- leges posteriores priores contrarias abrogant.[xiv] Coke says that contrary of law is a product of interpretation by directing judges to differ the wisdom of legislatures, and to refrain this he suggests that-
It must be known, that for as much as Acts of Parliaments are established with such gravity, wisdom, and universal consent of the whole realm, for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated [but] … ought to be maintained and supported with a benign and favourable construction.[xv]
By putting this article, Coke’s intention is to restrain the interpretation in statutes. He gives importance on the rigid framework of law by legislature without interpreted by judiciary. But the later approaches differ from Coke’s approach upon this point.
19th Century Approach:-
American courts borrowed the principle of presumption against implied repeals directly from Coke’s description with some altercation. American courts in 19th century followed same assumption put forward by Coke in Dr. Foster’s case. Some treatises on statutory interpretation takes Coke’s reasoning in Dr. Foster Case to its logical conclusion. Like Coke these treatise writer advocates a strong version of presumption against repeal by implication. The treatises suggest that, towards the end of nineteenth century, courts were increasingly willing to weigh ‘convenience’ against the presumption when deciding what to do with two conflicting statute. The treatises show that between 1800 and 1849 the court considered the possibility of implied repeals in fifteen majority opinions, but found that it occurred in only one case. But between 1850 and 1899 considered much more frequently and concluded that implied repeal occurred in thirty six of ninety nine cases.
Coke and his faithful successors applied the later enacted statute rule only in cases involving logical contrariety or repugnancy between two laws. In the 1860s and 1870s, a series of opinions supported use of a strengthened presumption when implied repeal “would operate to the prejudice of the government,” as, for example, by depriving it of revenue. In other words, this period witnessed the emergence of new manifestations of legislative intent, in the form of codification and widespread statutory revision, but judicial understanding of the type of intent manifested through such legislative acts was only to understand the legislative omniscience embraced by Coke.[xvi]
Approaches after 19th Century:-
After 1930’s period the court became increasingly unwilling to apply implied repeal. The case Cope v. Cope[xvii] decided in 1891 by Supreme Court of United State. This case involved an apparent conflict between a series of statutes passed by the Utah territorial legislature allowing illegitimate children to inherit property and an 1862 federal anti-polygamy statute, which annulled all existing Utah acts “that establish, support, maintain, shield, or countenance polygamy.” The Supreme Court reconciled the statutes by interpreting the Utah laws as sheltering not the practice of polygamy but the offspring of polygamous marriages. The Court justified this conclusion by reference to Congress’s purposes in enacting the anti-polygamy statute, which the Court ascertained through examination of federal enactments subsequent to this statute. The Court thus reconciled the potentially conflicting laws not just through formalist demonstration of the logical possibility of their coexistence but through exposition of their deliberate creation as mutually supportive parts of a coherent statutory regime.[xviii]
Another case came into conflict in Morton v. Mancari[xix] decided in 1973. In this case- Congress passed the Indian Reorganization Act in 1934. The Act included a provision in 25 U.S.C. Section 472 that gave hiring preference Native Americans for positions in the Bureau of Indian Affairs (BIA). Congress then passed the Equal Employment Opportunity Act of 1972, which prohibited racial discrimination in federal employment. In June 1972, the BIA extended Indian preference to both hiring and promotion decisions. C.R. Mancari was a non- Indian employee of the BIA. He and other non-Indian employees of the BIA filed a class action in United States District Court for the District of New Mexico. They claimed that Section 472 was repealed by the Equal Employment Opportunity Act. They also claimed that Section 472 violated the Fifth Amendment and their right to property without due process. The District Court ruled in their favour. The United States appealed to the Supreme Court.
Justice Harry A. Blackmun, writing for a unanimous Court, cited the long history of Indian employment preference as exceptions to prohibitions against employment discrimination. Congress had also passed two Indian preference statutes after the 1972 Act, showing that Congress did not intend implicitly to repeal Section 472. In addition, the Court held that Section 472 did not constitute discrimination in violation of the Fifth Amendment. Again, Justice Blackmun cited the history of “special treatment” granted to Indians. The preference for Indians in Section 472 was not “a ‘racial’ preference”, but rather “an employment criterion reasonably designed to further the cause of Indian self-government.” Section 472 went towards the “fulfilment of Congress’ unique obligation towards the Indians,” and was therefore not in violation of the Fifth Amendment.[xx]
Moreover, the Court’s reasoning in Morton v. Mancari is exceptionally faithful to the anti-updating, preservationist policy underlying the presumption. Morton v. Mancari confirms that, although in the twentieth century the Court began self-consciously to apply a more functionalist approach to the reconciliation of statutes in the service of the presumption against implied repeals, the presumption itself remained highly formalist in character.
Modern Approach of Court:-
In the recent case of USA in Branch v. Smith[xxi] the court’s treatment of an implied repeal question highlights the problems with the courts current use of the presumption. The case deals that-
“After the 2000 census caused Mississippi to lose one congressional seat, the state legislature failed to pass a new redistricting[xxii] plan. Anticipating a state-law deadline for qualifying candidates, appellants and cross appellees (state plaintiffs) filed suit in October 2001, asking the State Chancery Court to issue a redistricting plan for the 2002 elections. In a similar action, appellees and cross-appellants (federal plaintiffs) asked the Federal District Court to enjoin the current plan and any state-court plan, and to order at-large elections pursuant to Miss. Code Ann. §23–15–1039 and 2 U.S.C. §2(c)(5) or, alternatively, to devise its own redistricting plan. The three-judge District Court permitted the state plaintiffs to intervene and concluded that it would assert jurisdiction if it became clear by January 7, 2002, that no state plan would be in place by March 1. On the eve of the state trial, the State Supreme Court ruled that the Chancery Court had jurisdiction to issue a redistricting plan. The Chancery Court adopted such a plan. On December 21, 2001, the state attorney general submitted that plan and the Supreme Court’s decision to the Department of Justice (DOJ) for preclearance pursuant to §5 of the Voting Rights Act of 1965. DOJ requested additional information from the State, noting that the 60-day review period would commence once that information was received. The information was provided on February 20, 2002. Meanwhile, the Federal District Court promulgated a plan that would fix the State’s congressional districts for the 2002 elections should the state-court plan not be pre cleared by February 25. When that date passed, the District Court enjoined the State from using the state-court plan and ordered that its own plan be used in 2002 and until the State produced a pre cleared, constitutional plan. The court based the injunction on the failure of the timely preclearance of the state-court plan, but found, in the alternative, that the state-court plan was unconstitutional. The State did not appeal. DOJ declined to make a determination about the preclearance submission because the District Court’s injunction rendered the state-court plan incapable of administration”.[xxiii]
In addition the conflict between the constitution and statute, there arise another conflict between the laws of different legislatures. In USA, when there arise a conflict between state and Federal laws, the pre-emption[xxiv] doctrine applies unlike the presumption against implied repeal. Under the Supremacy Clause, if a federal law enacted “in Pursuance” of the Constitution collides with state law, the federal law prevails regardless of its temporal relationship to the state law with which it conflicts.’
The approach of presumption against repeal by implication needs reconsideration. The implied repeal doctrine should be restored to one that is sparingly, rather than creatively, applied. The courts should displace no statute under this doctrine unless a later enactment cannot be applied without interference from the earlier one. Such interferences should not be invented and can often be avoided. The avoidance of conflict only becomes important when two legal rules collide and cannot be reconciled to work together.
Even though the original justifications for the presumption against implied repeals are no longer universally accepted, no comprehensive new justification has been offered for its use. Under-theorization of the presumption has led to its too-rigid application, so that some courts seem to feel pressure to reconcile conflicting statutes at any cost. This makes the courts’ interpretive conclusions unpredictable and undermines the principle of legislative supremacy.
Nevertheless, the presumption reflects valid concerns and can remain a valuable tool for courts considering two conflicting statutes. The presumption should be re established as a more flexible and more principled guideline, based on notions of signaling and reliance.[xxv]
- California Law Review, Vol.92, Issue 2, Art.4 “Retheorizing the Presumption against Implied Repeal”
- Gonzaga Law Review, Vol.45, Issue 2, “The Supreme Courts New Implied Repeal Doctrine”
- Principle Of Statutory Interpretation, by J. G.P.Singh (8th edition 2003)
Edited by Sinjini Majumdar
[i] When one statute is more specific than another, then the principle of repeal by implication does not apply.
[ii] Jatindra Nath Gupta v. Province of Bihar (28 May 1949) AIR 1949 FC 175
[iv] Section 6- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) -Revive anything not in force or existing at the time at which the repeal takes effect….
[v] Law made by the Federal Legislature which it could not have made but for proclamation of Emergency shall cease to have effect on the expiration of period of six months after the proclamation had ceased to operate, except as respects things done or omitted to be done.
[vi] Wicks v. Director of Public Prosecution (1946)
[vii] Ellen Street Estate ltd. v. Minister of Health (1934) 1 KB 590
[viii] Mathraprasad and Sons v. State of Punjab (1962) AIR 1962 SC 745 p. 748
[ix] AIR 1979 SC 310
[x] Principle Of Statutory Interpretation by J. G.P.Singh (eighth edition) p.520 & 521
[xii] Principle Of Statutory Interpretation by J. G.P.Singh (eighth edition) p.522
[xiv] “Later laws abrogate contrary earlier one”
[xv]Dr. Foster’s Case, 77 Eng. Rep. At 1232
[xvi] California Law Review, Vol.92, Issue 2, Article 4, page 506
[xvii] 137 U.S. 682 (1891)
[xviii] California Law Review, Vol.92, Issue 2 page.506 & 507
[xix] 417 U.S. 535 (1974)
[xxi] 538 U.S. 254 (2003)
[xxii]Redistricting is the process of drawing United States electoral district boundaries, often in response to population changes determined by the results of the decennial census.
[xxiii] 538 U.S. 254 (2003)
[xxiv] Pre-emption refers to invalidation of a US state law when it conflicts with US Federal law.
[xxv] California Law Review, Vol.92, Issue 2, Article 4, p.532