In a shocking piece of news, delivered to us by one of our former bloggers, Thomas Vallianeth, it appears that Parliament recently repealed the Copyright (Amendment), Act, 1999 and Copyright (Amendment) Act, 2012 when it enacted the Repealing and Amending (Second) Act, 2017 and which law received Presidential Assent on January 5th, 2018.
The repeal of old legislation has been high on the Modi government’s agenda and since winning the elections in 2014 this government has been regularly repealing old laws. The exercise makes sense if it is aimed at repealing old legislation that has no place in the modern world. For example, this present legislation repeals the Dramatic Performances Act, 1876 a legislation enacted by the British to censor plays and theatres in Mumbai. Similarly, the Prevention of Seditious Meetings Act, 1911 which is another British era law has been repealed.
We however are unable to comprehend why this government recommended to Parliament to start repealing relatively recent legislation such as the Copyright (Amendment) Act, 1999 and Copyright (Amendment) Act, 2012 along with the Competition (Amendment) Act, 2007.
The Copyright (Amendment) Act, 1999 is the basis of important rights such as the rental rights and also introduced a new scheme for the government to recognize foreign right holders. The Copyright (Amendment) Act, 2012 needs no introduction to our readers – it is the legislation that brought in sweeping changes to the existing Copyright Act, 1957. These changes include the mandatory royalty sharing provisions, statutory licensing regime for broadcasters, a new scheme for copyright societies, a safe harbor provision for internet intermediaries etc. You can read more about it in my book with Sumathi over here or if you want an open source alternative, you can read about the amendments on SpicyIP or a NUJS law review special issue that is available over here.
So why exactly has the government repealed these laws and more importantly what is the effect of such a repeal?
One interpretation being circulated is that the principal act, which is the Copyright Act, 1957 survives as amended and only the amending act is repealed. The other interpretation of course is that the all of the amendments proposed by the legislation of 1999 and 2012 also go out of the window and the law reverts to the form it had as of 1994 when it was last amended.
Lending credence to the first interpretation, is Section 4 of the Repealing and Amending (Second) Act, 2017 which states that “The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to”. This is a boiler plate clause in all repeal and amending legislation.
In other words, it maybe possible to argue that once the principal act is amended it takes on a life of its own by incorporating the amendments into its text and continues to survive regardless of the existence of the amending legislation. This interpretation is backed by the fact that in normal parliamentary convention when a law is being amended it is normal to amend only the text of the principal legislation and not the amending legislation.
The other opposing interpretation flows from simple logic. If the amending statute, is the source of the power and it has been eliminated, then is it not obvious that the amendments to the principal act lose their validity and are automatically repealed? What else is the point of repealing the amending act? It surely can’t be the case that a status quo exists regardless of whether a law is or is not repealed by Parliament. If there is no effect after Parliament repeals a legislation, why even go through the motions of repealing the law? What’s the point of such an exercise? Parliament must have intended to have an effect at the time it decided to repeal the law and that intention is to simply junk those set of amendments.
But enough of first principles let’s move on to the case-law. If you thought it was completely impossible for such an absurd fact scenario to have taken place in Indian history, think again. The very same issue made it till the Supreme Court in the case of Jethanand Betab v. The State of Delhi, which was decided in 1959. The Indian Wireless Telegraphy Act, 1933 had been amended in 1949 to introduced a particular penal provision. The amending act was subsequently repealed by The Repealing and Amending Act, 1952. The question was whether the penal provision inserted in 1949 would survive or be deleted from the law. The court speaking through Justice Subba Rao held that the amendment introduced in 1949 would survive even after the amending legislation was repealed because of Section 6A of the General Clauses Act and not Section 4 of the repealing act (which appears to be a boiler plate clause in all of these repealing legislation).
Justice Subba Rao states in pertinent part:
“The next question is whether s. 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act. The relevant part of s. 4 only saved other enactments in which the repealed enactments have been applied, incorporated or referred to. Can it be said that the amendments are covered by the language of the crucial words in s. 4 of the Act of 1952, namely, applied, incorporated or referred to”. We think not. Section 4 of the said Act is designed to provide for a different situation, namely, the repeal of an earlier Act which has been applied, incorporated or referred to in a later Act. Under that section the repeal of the earlier Act does not affect the subsequent Act.”
In other words, Section 4 cannot save the amendment introduced in the Copyright Act, 1957 by the amending statute of 2012. It could have only operated to save the reference to the Copyright Act, 1957 in the Copyright (Amendment) Act, 2012 if the former was being referred to in the latter.
The provision however survives thanks to Section 6A of the General Clauses Act, 1897 which reads as follows:
“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.”
The appellant in the Betab case tried arguing that the amendment was not merely textual but substantial in nature. Justice Subba Rao however rejected that interpretation on the following grounds:
“The text of an enactment, the argument proceeds, is the phraseology or the terminology used in the Act, but not the content of that Act. This argument, if we may say so, is more subtle than sound. The word ” text “, in its dictionary meaning, means ” subject or theme “. When an enactment amends the text of another, it amends the subject or theme of it, though sometimes it may expunge unnecessary words without altering the subject. We must, therefore, hold that the word ” text ” is comprehensive enough to take in the subject as well as the terminology used in a statute.”
Applying the same logic to the Repealing and Amending (Second) Act, 2017 it will be possible to save the effect of the Copyright (Amendment) Act, 2012 on the principal legislation even after the amending legislation has been repealed. I am not too convinced though by Justice Rao’s expansive interpretation of the phrase “text” in Section 6A of the General Clauses Act – I think the appellants had a valid point when they distinguished between an amendment that changed only phraseology and terminology and one that brought in substantial amendments. Justice Rao’s interpretation renders the phrase “text” otiose. There must be some specific reason for the legislature to introduce the phrase “text” because it must be aware that all amendments would in any case happen to the “text” as interpreted by Justice Rao.
In any event, we need to see how the music industry decides to tackle this issue – it could keep quiet and accept the futility of a legal challenge or it could start using the repealing legislation to start redrafting contracts and agreements and then wait for litigation to deliver a conclusive verdict. All of this is extremely unfortunate in my view – presuming the government had only the most benign of intentions behind this move, I fail to understand the aim of this exercise? What has it achieved for the government?
Hi Prashant, I think this is only a repeal of the amendment acts (your first suggested interpretation). This won’t affect the original Acts. See the Statement of Objects and Reasons:
“STATEMENT OF OBJECTS AND REASONS
This Bill is one of those periodical measures by which enactments which have
ceased to be in force or have become obsolete or the retention whereof as separate
Acts is unnecessary are repealed or by which the formal defects detected in enactments are corrected.
2. The notes which follow explain the reasons for the amendments suggested in
such of those items of the Bill in respect whereof some detailed explanation is
necessary.
3. Clause 4 of the Bill contains a precautionary provision in the form of saving
clause which it is usual to include in the Bill of this kind.
NEW DELHI; RAVI SHANKAR PRASAD
The 8th August, 2017.”
I think the first part makes it quite clear that this was only a clean up since a separate amending act was not considered necessary. The PRS bill summary available at the link below also suggests the same: at http://www.prsindia.org/uploads/media/Repealing%20and%20Amending%20%282nd%29%20bill/Bill%20Summary-%20Repealing%20and%20Amending.pdf.
The question remains though, what does this clean up exercise achieve? What hypothetical “statute book” are we cleaning up?
If there is some such thing, shouldn’t every amendment act be repealed because these amendment acts will serve no purpose once they have been passed?
Some jurisprudence from the MP High Court on this issue (Smt. Geeta Devi Mishra And Ors. vs Anil Kumar Tiwari):
“8. The Tribunal has again under a wrong notion held that the Repealing and Amending Act, 2001 has deleted that provision in Section 140 of the Act which enhanced the compensation from Rs. 25,000/- to Rs. 50,000/-. The Motor Vehicles (Amendment) Act, 1994 incorporated the amendment in Section 140 of the original Act and thereafter the amending Act lost its utility and, therefore, it was repealed by Repealing and Amending Act, 2001. The amendment incorporated in Section 140 of the Act has become a part of the original Act or parent Act and, therefore, the Repealing and Amending Act, 2001 does not obliterate the amendment which has become a part of that Act. The Repealing and Amending Act, 2001 has only reduced the bulk of the statute book. This has been described as “legislative spring-cleaning”. Section 4 of the Repealing and Amending Act, 2001 clearly saves the enactment in which the repealed enactment has been incorporated. The amended Section 140 continues to retain its amended efficacy. This legal position has been made crystal clear by Chhattisgarh High Court in Smt. Mukta Bai and Ors. v. Satyanarayan Gupta and Ors., 2003(3) M.P.H.T. 28 (CG) and also by this Court in Smt. Phoolmati Bai and Ors. v. Mohd. Azad and Ors., 2003(3) M.P.H.T. 352.”
An interesting comparison can be made between the language of Section 4 in this Repealing and Amending Act and the language in Section 4 of the The Repealing and Amending (Second) Act, 2015, extracted below:
“The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to.”
The all important “other” which formed the basis of Justice Subba Rao’s interpretation is missing from that Act.
What a complete mess.
This is the 2017 Act though and it does have the word “other” in Section 4.
Agreed, and that’s the comparison I was pointing out in my comment – between the 2015 one and the 2017 one.
All of this of course moot in light of Section 6A of the GCA.
The Statement of Objects of the Bill introduced in the Lok Sabha, states that “This Bill is one of those periodical measures by which enactments which have ceased to be in force or have become obsolete or the retention whereof as separate Acts is unnecessary are repealed or by which the formal defects detected in enactments are corrected.”
Seems pretty daft.
Seems pretty daft
If this amendment were a routine exercise, then why was not the Copyright (Amendment) Act, 1994 repealed first, for the same reason? Not repealing the 1994 Act can’t have been an oversight.
The following words read literally seem to mean one thing:
“The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to;”
They mean that if the 2012 repealed Act has been applied, incorporated or referred to in some other Act, that Act is not affected. I don’t know, but I doubt if the 2012 Act has been applied, incorporated or referred to in any other Act but if so that other Act is not affected, which doesn’t address the question here.
Nevertheless one is puzzled. Was this a way of quietly smuggling in the repeal in? Sounds far-fetched, but not impossible.
A response to Prashant’s comments: what non-debatable or even reasonably clear line can there possibly be between amendments that change phraseology and amendments that make substantial amendments? Unless there is clear guidance like Notes on Clauses to make the intention clear (as in the explanation about performers and performance in the Notes on Clauses to the 1994 Act) which is not the case here. I think Justice Rao was right.
Though I remain puzzled, and open to argument to the contrary, it seems that the straightforward interpretation is simply that the 2012 Act has been repealed. Now everyone will have to take stock of the consequences. But I would not mourn that appallingly bad draft (whether the intentions were noble or not). Perhaps it can be replaced by something that makes sense.
Hey folks! how about creating a little less (and unnecessary) panic in the world with the “click bait” type headlines!!!
Word
Stop spreading panic and using clickbait sentences. As you have yourself noted, it is merely a clerical thing which does not take away the amendments.
Its a routine thing Prashant. There is no need to Panic. The Copyright Act 1957 ( as amended in 2012) is very much in force.
The position seems to be pretty clear on this issue. I agree with the first interpretation. In fact there are other decisions as well which have made it amply clear that the The object of Repealing and Amending Acts is not bring in any change in law but to remove enactments which have become unnecessary. It has no legislative effect. It is merely an editorial revision intended to remove dead matter from the statute book and to reduce its volume.
Have carried out a post to that effect: http://iprmentlaw.com/2018/02/23/impact-of-the-repealing-and-amending-second-act-2017-apropos-copyright-amendment-act-1999-and-2012-only-an-editorial-revision/
This repeal does not affect the incorporated amendment in the main Act. So relax and chill.
The Patents (Amendment) Act, 1999, The Patents (Amendment) Act, 2005
were also repealed in 2016 via The Repealing and Amending Act, 2016 (23 of 2016), The Act is available at: http://lawmin.nic.in/ld/Act23of2016RepealingandAmending.pdf
Additionally, two letters dated 04-09-2014 and 30-09-2014 were issued by the Ministry of Law and Justice to all the Ministries of the Central Government clearly stating that 6A of the General Clauses Act 1897 will be relevant in connection with the repeal of Amending Acts. According to Section 6A amendments made in the Principal Act by the Amendment Act are deemed to have been incorporated in the Principal Act immediately after its coming into force and the repeal of the amendments will consequently not affect the continuance in force of the amendments which have already become a part of the Principal Act. The links to the two letters published by the Ministry of Law and Justice on their website are below:
04-09-2014 Letter: http://lawmin.nic.in/ld/II-1.pdf
30-09-2014 Letter: http://lawmin.nic.in/ld/II-3.pdf
I agree with Mr. Ameet. Infact before posting such things & creating panic, little more research should have been done.
See the clarification of 16.6.2016 as well: https://tribal.nic.in/DivisionsFiles/amendingAct.pdf
Seems it has become a fashion to criticise the government
Yes. I have to withdraw my earlier, hasty response.
Lets not press Panic buttons… Thanks all for the clarifications
The ministry has issued a letter to lay to rest this panic… so I suppose it’s RIP Now
I don’t intend to speak for Prashant here and am sure he will respond in due course. He asked a legitimate question (putting a question mark at the end, if you care to notice) and then proceeded to answer the issue in a reasonably thoughtful manner. All of us have different styles–and I personally would not have used some of the language he did. But then again, that diversity is what makes this blog a bit more exciting, and dare I say, “spicy”! Come on folks: we have to live upto our name, at least once in a while. So please cut us some slack! On a more serious note, I hope this issue will lead us to thinking a bit more deeply about the legislative malaise in our system. Why have separate amendment acts? Is this the practice in other countries that have thought through this issue a bit more? Can’t we just have the parent act as amended–(in the bill form and later as passed). And can’t we insist that the govt release the parent act as amended. As opposed to releasing each such amendment separately and waiting for us (the public) to stitch it together and make sense. Unless of course we go out and buy those bare acts sold by commercial publishers! We tried doing this with the patents act and made the first such version (1970 act as amended upto 2005) freely available on SpicyIP. But this should be the govt’s responsibility—and we need to persuade govt agencies to put in place a mechanism to make the law a little more accessible and a little less intimidating for the common man. Am sure there’s a better way to do these things than to pass each amendment separately, then have them repealed and then have section 6A pontificate thus:
“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.”
God lord! I had trouble understanding this at the first shot. Imagine a layman with no proficiency in the law! And they say that: “ignorance of the law is no excuse”. Hope we can steer the debate towards these pressing macro level policy gaps.
Now I’m worried is reading this blog really worth it. Cause he is creating unnecessary hype of something that has no relevance. Will have to recheck since following such blogs can be misguiding to newcomers like me.
Shamnad ji, please don’t loose sight of General Clauses Act. Also read about doctrine of legislative spring cleaning. Prashant if he burns his mid night oil today may have answers and redraft his blog tomoro. Albeit, panic is misplaced.
https://books.google.co.in/books?
id=i4j3DAAAQBAJ&pg=PR205&lpg=PR205&dq=legislative+spring+cleaning&source=bl&ots=yecK5Gzt6s&sig=UxAR0BaYjrP7dPdSo27cdhSYhfI&hl=en&sa=X&ved=0ahUKEwjL7ZSJ4b7ZAhUEo5QKHa01BX4Q6AEIUzAI#v=onepage&q=legislative%20spring%20cleaning&f=false