Law is a game of words — this quote holds true when courts are presented with the challenging task of differentiating between terms which sometimes appear to have a similar connotation. For example, the words ‘repeal’ ‘substitute’ and ‘omission’ have different tenor in a literal sense but tend to denote a similar meaning when used in the context of any amendment of law. While the words themselves may not cause a conflict, it’s the consequences of the amendment on the rights and liabilities of the parties that have led to the courts differentiating between these terms. In the aforementioned backdrop, we will discuss the way the Supreme Court has dealt with these three terms used by the legislature while amending any law and whether the conflict between these words continues to be a cause of melee in interpretation.

One of the earliest authorities which brought up the question of ‘at odds interpretation’ between ‘repeal’ and ‘omission’ is the five-Judge Bench judgment of the Supreme Court in Rayala Corporation (P) Ltd. v. Director of Enforcement, New Delhi[1]. The question which arose for consideration before the Supreme Court in this case was if Rule 132-A of the Defence of India Rules, 1952 (the DI Rules) was omitted by a notification of the Ministry of Home Affairs dated 30th March 1965, can a prosecution in respect of an offence punishable under that Rule be instituted on 17th March, 1968 when the Rule itself had ceased to exist?

The Court brought to the fore Section 6 of the General Clauses Act, 1897 (the GC Act) for the purpose of distinguishing between the terms ‘repeal’ and ‘omission’ since Section 6 saves the power of prosecution and punishment for acts committed in a repealed legislation. The Court while differentiating the two terms held that:

“Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the DI Rules for the two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule.”                                                        

(emphasis supplied)

The Supreme Court in the above judgment did not discuss the two terms ‘repeal’ and ‘omission’ before coming to the said conclusion. There is no discussion on how the two terms are separate and whether they can be used interchangeably.

Rayala Corporation case came for consideration before the five-Judge Bench of Supreme Court in Kolhapur Canesugar Works Ltd.v. Union of India[2]. In this case the Court dealt with the definitions of ‘Central Act’, ‘enactment’, ‘regulation’, ‘rule’ as defined in Sections 3(7), 3(19), 3(50) and 3(51) respectively in the General Clauses Act and held that Section 6 only applies to Central Act and regulations. The Court further stated that —

When the Legislature by clear and unambiguous language has extended the provision of Section 6 to cases of repeal of a ‘Central Act’ or ‘regulation’, it is not possible to apply the provision to a case of repeal of a ‘rule’….Section 6 is applicable where any Central Act or Regulation made after commencement of the General Clauses Act repeals any enactment. It is not applicable in the case of omission of a “rule“.”                                                                                            

(emphasis supplied)

This judgment neither deals with the distinction between the terms omission and repeal, nor were any arguments regarding the same raised before the Bench. It simply deals with the applicability of Section 6 of the GC Act in context of the rules and upholds Rayala Corporation judgment. But reading between the lines of  Kolhapur Canesugar judgment, it can be said that it makes no distinction between repeal and omission. In para 37 of the judgment, the Court states that —

37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favor of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable.[3]

                    (emphasis supplied)

From the emphasised[4] lines above, it can be seen that the Court uses the term repeal, omission and deletion interchangeably. This is also inferable that in case a provision is omitted, Section 6 may change the position which is contrary to what  Rayala Corporation judgment says. Rayala Corporation clearly states that Section 6 of GCA is only applicable to the matters of repeal. So even though it upheld Rayala Corporation judgment, it did not distinctly lay out the distinction between the two terms.

Further, both the cases (Kohlapur Canesugar and Rayala Corporation) have not considered Section 6-A of the GCA which has been reproduced hereinafter —

6-A. Repeal of Act making textual amendment in Act or Regulation.—Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.”

This argument was raised in  General Finance Co.v. Assistant Commissioner of Income Tax, Punjab[5], to state that the earlier two judgments neither discussed the distinction between the two terms, nor they considered Section 6-A of the GC Act. It was further argued that the use of the words ‘repeals by express omission, insertion or substitution’ will cover different aspects of repeal; that this is a further legislative indication that ‘omission’ also amounts to a ‘repeal’ of an enactment.” However, the Court rejected the argument in light of the above two five-Judge Bench judgments of the Supreme Court and also refused to refer the matter to a larger Bench.

In fact, another judgment of the Supreme Court in Gammon India Ltd. v. Spl. Chief Secretary[6]while dealing with repeal and implied repeal echoed the reasoning that when the intention of legislature is to repeal, the use of words will not make any difference in resorting to Section 6 of the GC Act. The Court held that “Where an intention to effect a repeal is attributed to a legislature then the same would attract the incident of saving found in Section 6.”

The matter was however finally dealt in length in a two-Judge Bench judgment of Fibre Boards (P) Ltd., Bangalore v. Commissioner of Income Tax, Bangalore[7], where the Court stated that the view in Rayala Corporation needs a reconsideration for omission of a provision results in abrogation or obliteration of that provision in the same way as it happens in repeal. The Court discussed the two terms and concluded that “it is clear that repeals may take any form and so long as a statute or part of it is obliterated, such obliteration would be covered by the expression “repeal” in Section 6 of the General Clauses Act.

The Court then went ahead and nullified the effect of the above five-Judge Bench judgment with respect to difference between repeal and omission. The Court held that:

“31…once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word “repeal”, an “omission” would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corporation (P) Ltd.[8] cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta.” [9]      

(emphasis supplied)

The Court even declared that the two five-Judge Bench decisions (Rayala Corporation and Kolhapur Canesugar) were per incuriam as they did not consider Section 6-A of the GC Act. The Court with this effect held that:

“33. A reading of this section would show that a repeal by an amending Act can be by way of an express omission. This being the case, obviously the word “repeal” in both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6-A, therefore, again undoes the binding effect of these two judgments on an application of the ‘per incuriam’ principle.”[10]

The same two-Judge  Bench  of Fibre Boards case, once again after a month decided the present issue in detail in Shree Bhagwati Steel Rolling v. Commissioner of Central Excise[11] and held that delete and omit are used interchangeably, so that when the expression repeal refers to delete, it would necessarily take within its ken an omission as well. The Court further observed that all these expressions only go to form and not to substance. It also reiterated its stand in Fibre Boards case and held that “This again does not take us further as this statement of the law in Rayala Corporation[12] is no longer the law declared by the Supreme Court after the decision in the Fibre Boards case.”[13]

The decision in Fibre Boards and Shri Bhagwati Mills though rendered by two-Judge Bench, nullified the earlier Constitution Bench judgments by routing through the principle of per incuriam. It is a welcoming judgment as it finally clarifies that practically there exist no difference between the two terms. A plain reading of these words — repeal, omission and substitute will convey more or less the same meaning – that it is a form of ‘amendment’. The Supreme Court in Bhagat Ram Sharma v. Union of India [14] echoed the same view and held that:

“It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. There is no real distinction between ‘repeal’ and an ‘amendment’.”[15]

Similarly, in the case of the word ‘substitute’, the Supreme court in Ramkanali Colliery of BCCL v. Workmen by Secy., Rashtriya Colliery Mazdoor Sangh[16] , the Supreme Court held that:

“If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression “substituted” is used. Such deletion has the effect of the repeal of the existing provision and also provides for introduction of a new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases.”[17]

Despite the above judgments holding that practically there exists no difference between these words, the interpretation of the terms continues to lock horns as there are huge consequences on the rights and liabilities of the parties due to amendments. The conflict arises when the legislature does not provide a ‘saving clause’ or it leaves doubt as to the future course of action in case of an amendment. The ‘intention’ of the legislature does not become apparent at the time of amendment which leaves it for the Court to ‘interpret’ the legislative intent and policy behind such repeal, omission and substitution.

The latest challenge has arisen due to the 2018 amendment[18] in the Prevention of Corruption Act, 1988 which has ‘substituted’ Section 13(1), opening a series of challenges before the Court to decide on the fate of the proceedings already conducted or pending as per the pre-amended Prevention of Corruption Act. In an order passed on May 22nd 2020 in Madhu Koda v. State[19], the Delhi High Court declined to grant the benefit of the amendment to Madhu Koda, convicted under the PC Act but the question is still open before the Supreme Court. This time the Court will have an opportunity to comprehensively consider the previous judgments on the effect of repeal, omission, substitution and read coherently with the relevant provisions of the General Clauses Act.

* Jatin Sehgal, Partner of Kred Jure Law Firm, New Delhi

**Advocate practising in Delhi courts

[1] (1969) 2 SCC 412

[2] (2000) 2 SCC 536     

[3] Kolhapur Canesugar Works Ltd. v. Union of India, (2000) 2 SCC 536 at p. 551

[4] Herein italicised.

[5] (2002) 7 SCC 1  

[6] (2006) 3 SCC 354  

[7] (2015) 10 SCC 333  

[8] (1969) 2 SCC 412 

[9] (2015) 10 SCC 333 at p. 354

[10] Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 at p. 355

[11] (2016) 3 SCC 643   

[12] (1969) 2 SCC 412 

[13] Ibid at p. 658

[14] 1988 Supp SCC 30 

[15] Ibid at p. 40, para 17

[16] (2001) 4 SCC 236 

[17] Ibid at p. 240

[18] Prevention of Corruption (Amendment) Act, 2018  

[19] 2020 SCC OnLine Del 599  

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