Presumptions Against Repeal By Implications Essay

3972 words - 16 pages

INTRODUCTIONPresumption as defined in black's law dictionary as a legal inference or assumption that a fact exists, based on the known or proven existence of some other facts or group of facts. Most presumptions are rules of evidence falling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.William P. Richardson in his book on 'The Law of Evidence' defines presumption to be an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection.Repeal has been defined as an abrogation of an existing law by legislative act. Repeal has been divided into two by eminent jurists as expressed repeal and implied repeal. The former is a repeal affected by specific declaration in a new statute. While the latter, is a repeal affected by irreconcilable conflict between an old law and a new law. This is also termed as repeal by implication.The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the courts applies the doctrine, it does no more than give effect to the intention of the legislature by examining the scope and the object of their provisions.In a landmark case on this doctrine of implied repeal, Municipal Council, Palai v. T.J. Joseph , the Hon'ble court had laid down that, 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 there fore, when it does not provide a 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 expreesio unius est exclusio alterius . Further, the presumption will be comparatively strong in case of virtually contemporaneous acts. The continuance of the existing legislation, in the absence of an express provision of repeal by implication when the provisions of the later acts are so inconsistent with or repugnant to the provisions of the earlier acts " that the two cannot stand together". But, if the two may be read together and some application may be made of the words in the earlier Act, a repeal will not be inferred. Thus the prevention of Food Adulteration Act, 1954 and Rules made thereunder although both contained regulatory provisions and laid down certain standards of quality and composition for vinegar for it was not possible to say that the two could not stand together. In the words of the Court: " If the Adulteration act or...

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