28 Feb 2008

Goa Govt. to invoke 111 year old Act: so whats the news?

This news-item comes really as a shock to me; shock because this can be news at all. To give you the background anyways, rediff reports that the Goa Government is planning to invoke a 111 old law to denotify the SEZs already notified by the Central Government under the Special Zones Act, 2005.

So why a shocker? Shocking because any law student can tell you that this 111 year old Act, namely the 'General Clauses Act, 1897' is one of the most frequently invoked legislation and the mother of last resorts for interpretation of statutes (enactments of Act i.e.). This archaic, yet breathing and relieving provision has been the lifeline for many of us who have been unable to find a satisfactory answer to how laws should be interpreted and comes to rescue for us all the time. Any one acquainted with law as a formal subject would have surely heard of this legislation and must also have referred to this really small piece of legislation atleast once in life time.

Brought into vogue in 1897 (to consolidate the principles under the 1868 and 1887 Acts with the same name) this Act is the mother of statutory interpretation rules in
India. Similar to the Interpretation Act, 1978 of the UK, the Act of 1897 lays down the rules of how and in what manner statues have to be interpreted (so much so that Justice G.P. Singh has written an entire treatise on it, which has been a best-seller in legal circles in India and one of the most referred book by the Supreme Court in recent times). This Act of 1897 carries a number of definitions under Section 3 which most of us (in legal profession or otherwise) employ but for which the exact and formal definition lies only in this 1897 Act. The most prominent of these include terms such as 'affidavit', 'document', 'enactment', 'good faith', 'government securities', 'immovable property', 'local authority', 'movable property', 'offence', 'person', 'registered' (in respect of a document), 'will', etc. While most of us commonly employ these terms, we do not know that their genesis, in the context of legal expression in India, lies in the General Clauses Act, 1897, which rediff very ignorantly defines as a '111 year old law'.

These specific sections of the Act are devoted to other rules of interpretation. For example most of us know that a bill becomes a law and comes into force when it is signed by the President. Our Civics books have told us that. Asked to guess where from this rule comes, most of us would say from the Constitution (which was adopted in 1949). But then they are wrong for the source of this rule is much older and Section 5 tells us originally central enactments came into force when the Governor General signed on them and it has been amended to change the name to the President. Thus this enactment is the source of this rule with which most of us are aware of but ignorant to its source.

Similarly, entailing the various legal concepts, Section 9 sets the rule regarding the commencement and termination of the time for the operation of the statute. Section 7 deals with situations in which there is revival of repealed statutes; Section 10 pertains to computation of time (for purposes other than that under the Limitation Act, 1963), Section 11 deals with (and I agree, quiet funny, nonetheless relevant) the calculation of distance. It states, "In the measurement of any distance, for the purposes of any Central Act or Regulation made after the commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane."

Then an important (for lawyers though) is Section 13 which deals with gender and number. It states "in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa." I myself was not aware that the often cited rules originated from this 1897 Act for law during law school. But that since I realized this source, I am a fan of this 1897 Act.

There are many other important rules but of those I will discuss just one more; Section 6. This Section 6 is a rule of interpretation, which has an entire area of jurisprudence built upon it. It deals with the 'repeal of statutes' and the effects of such repeal. Very relevant in case of statutes dealing with criminal offence and the effect of repeal of such statutes (the most prominent cases in this area have been with respect to TADA (Terrorist And Disruptive Activities (Prevention) Act) and MISA (Maintenance of Internal Security Act). There have even been cases involving huge financial stakes (the one I have personally been a part of dealt with the repealed Sick Industrial Companies Act (or SICA)) which have called no less than the Supreme Court to interpret the provision of this 1897 Act. Though the interpretation on that regard is fairly settled (by a five judge constitutional bench of the Supreme Court) nonetheless a number of cases play reliance on this Section 6 and thus the principles embedded gain prominence.

As for the news why rediff cites this, is Section 21 of the Act which simply states that the power to issue notification also includes the power to revoke it. This implies the law makers as long back as more than 100 years conceived a situation wherein there would be enactments which would only give the power to notify and fail to mention anything about power to revoke, something which has exactly happened in the 2005 SEZ Act. This Act only vests the power of notifying a 'Special Economic Zone' on the Central Government. There is no mention about revoking a notification constituting an SEZ (perhaps the Government thought they would not need to de-notify one). But now that the Goa Government finds establishment of SEZs in Goa as contrary to their political agenda they seek to delimit and revoke these SEZs which have been notified to be established in Goa. To this the Secretary to Government of India responsible for notification of SEZs has the simple answer that there is simply no procedure for revoking a notification establishing and SEZ and so nothing can be done for those already brought into existence under the 2005 Act.

I am sure, it could only have been a legal brain to divert the attention of the Goa Government to bring to the notice of the Central Government this Section 21 of the General Clauses Act, 1897 whereby the power to issue notification being conferred upon the Central Government for formation of SEZs also implies that it also carries with it the power to de-notify them. Quiet simple though, but takes a legal provision to do so. And that is what Section 21 exactly does.

So there is nothing funny about that rediff, just get your facts right.

No comments: