Incorporation of an earlier Act into a later Act is a legislative device adopted in order to avoid verbatim reproduction of the provisions of the earlier Act in the later. A distinction has been drawn between (a) a mere reference or citation of the statute into another and (b) incorporation. In the former case a modification, repeal or re-enactment of the statute that is referred will also have effect for the statute in which it is referred; but in the latter case any change in the incorporated statue by way of amendment or repeal has no repercussion on the incorporating statute. It is a question of construction whether a particular former statute is merely referred to or cited in a later statute or is wholly or partially incorporated therein. (G.P. Singh, Principles of Statutory Interpretation, 12 Edn (2010), p. 318 – 335)
I. INCORPORATION OF EARLIER ACT
The result of incorporation is to constitute the later Act along with the incorporated provisions of the earlier Act, an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act.
Mahindra and Mahindra Ltd. v. Union of India (UOI) and Anr. (AIR1979SC798)- MRTP ACT, 1969
Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for appeal to Supreme Court against the orders of the MRTP Commission on ‘one or more grounds specified in S. 100 of Code of Civil Procedure, 1908’. S.100 of CPC was substituted by a new section in 1976 which narrowed the grounds of appeals. The SC held that in construing S.55 of MRTP Act, S.100 of CPC as it existed in 1969 which was incorporated in S.55 of MRTP Act is to be considered; the substitution of new S.100 of CPC had no effect.
“It must be remembered that the Act is a self-contained Code dealing with monopolies and restrictive trade practices and it is not possible to believe that the Legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. … The Legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section….” (Paragraph 11)
Also see Bharat Co-Operative Bank (Mumbai) Ltd. v. Co-Operative Bank Employees Union (AIR 2007 SC 2320)
EXCEPTIONS TO RULE OF INCORPORATION:
The State of Madhya Pradesh v. M.V. Narasimhan (AIR1975SC1835)- Prevention of Corruption Act, 1947
The Supreme Court laid down exceptions to the rule of incorporation:
“16. …Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:
(a) where the subsequent Act and the previous Act are supplemental to each other;
(b) where the two Acts are in pari materia;
(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.”
II. REFERENCE OF EARLIER ACT
Western Coalfields Limited v. Special Area Development Authority, Korba and Anr. (AIR1982SC697) – Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973
S.69(d) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 enacted that the Special Area Development Authority shall for the purpose of taxation have the powers which a Municipal Corporation or Council has under the M.P. Municipal Corporation Act, 1956 or the M.P. Municipalities Act, 1961.
The powers of the Municipal Corporation or Municipal Council to levy property tax was expanded vide amendment after clause (d) was inserted in Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The argument was that the Development Authority could exercise only such powers to levy property tax as the Municipal Corporation or the Municipal Council had under their acts on February 27, 1976, when Clause (d) was inserted in its present form in Section 69 of the Act of 1973, i.e., the provisions conferring powers of taxation under the aforesaid two Acts must be taken to have been incorporated in Section 69(d) of the Act of 1973. The Court held that this was not a case of incorporation, but a case of reference.
The Court considered the principles laid down in State of M.P v. M.V. Narasimhan and observed as follows:
“17. Applying these principles, we are of the opinion that in the instant case, subsequent amendments made to the Municipal Corporation Act and the Municipalities Act will also apply to the power of taxation provided for in Section 69(d) of the Act of 1973. The Act of 1973 did not, by Section 69(d), incorporate in its true signification any particular provision of the two earlier Acts. It provides that, for the purpose of taxation, the Special Area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the Madhya Pradesh Municipal Corporation Act, 1956 or the Madhya Pradesh Municipalities Act, 1961. The case therefore is not one of incorporation but of mere reference to the powers conferred by the earlier Acts. …Section 69(d) of the Act of 1973 must accordingly be read to mean that respondent 1 shall have all the powers of taxation which a Municipal Corporation or a Municipal Council has for the time being, that is to say, at the time when respondent 1 seeks to exercise those powers.”
EXCEPTIONS TO LEGISLATION BY REFERENCE:
Girnar Traders v. State of Maharashtra and Ors. ((2011)3SCC1)- Land Acquisition (Amendment) Act, 1984 and Maharashtra Regional and Town Planning Act, 1966
The Supreme Court discussed the concept of reference to earlier acts-
“41. … When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines…”
“42. … Another feature of legislation by incorporation is that the language is explicit and positive. This demonstrates the desire of the legislature for legislation by incorporation. Self-contained enactment should be clearly distinguished from supplemental law. When the later law depends on the former law for procedural/substantive provisions or is to draw its strength from the provisions of the former Act, the later Act is termed as the supplemental to the former law.”
Exceptions to legislation by reference– The Court went on to hold that rule of legislation by reference too can have exceptions
“66.. It will be useful to apply the ‘test of intention’ and ‘test of unworkability’ with their respective contextual reference while determining the applicability of either of the doctrines and for that matter, even on the applicability of the amended law to the later law. It is emphasized that the object of the principal Act should not be permitted to be defeated on the basis of either of the doctrines above referred. Hence, there is need for carving out exceptions to the rule of legislation by reference as well. Examples where such reference would be impermissible are as follows:
- a) Legislation by reference should not result in defeating the object and purpose of the later Act;
- b) Where the amendments to the earlier law are read into the subsequent law as a result of legislation by reference, if the result is irresolvable conflict between their provisions or it results in destroying the essence and purpose of the principal Act (later law).”
The above exceptions to the doctrine are not exhaustive but are merely indicative.
III. IMPACT OF COMPANIES ACT, 2013
Various legislations make reference to the provisions of Companies Act, 1960. The Companies Act, 2013 was notified in the Official Gazette on August 30, 2013. Some of the provisions of the Act have been implemented by a notification published on September 12, 2013. The provisions of Companies Act, 1956 are still in force. The Companies Act, 2013 does not contain a provision which stipulates that reference to it in other legislations will henceforth mean reference to the 2013 Act. In the light of the above, interpretation of the legislations which make a reference to the 1956 Act can create doubts in the minds of the regulators and courts- whether the Legislature intended incorporation or reference. There is, however, no clear answer to the question and it will depend on analysis of each legislation where such reference has been made.