Retrospectivity & Bringing into Force: Arbitration Amendment Act, 2019

In the previous post in this blog, we had noted that Section 15 of the Arbitration and Conciliation (Amendment) Act, 2019 (2019 Act) has not been brought into force. A few seem to have read the blog post. One of the queries raised by a reader was whether the phrase "Save as otherwise provided in this Act" was otiose. The short answer is yes. This post deals with reasons why. 

But in order to provide a complete picture of the question as to whether Section 15 is currently in force, we reproduce the previous post under the head "Part I" and deal with the above issue regarding the effect of "Save as otherwise provided in this Act" in Section 1(2) of the 2019 Act in Part II. Those readers who have read the previous post can skip Part I of this post and scroll down to Part II below.

Part I

As on date, that is, 29.08.2019, the Arbitration and Conciliation (Amendment) Act, 2019 (2019 Act) has not yet been brought into force although the 2019 Act has been notified in the Official Gazette on 09.08.2019. 

Title of the notification states: "The following Act of Parliament received the assent of the President on the 9th August, 2019, and is hereby published for general information..." This notification does not bring into force the 2019 Act but was only published in the Official Gazette for general information.

Section 1(2) of the 2019 Act provides: "(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision."

This sub-section can be analysed in two parts. The first part provides, among other things, that the Act shall come into force when the Central Government notifies the appointed date in the Official Gazette. The second part implies that this Act shall come into force immediately when it provided so in the 2019 Act. 

The prevailing opinion seems to be that the 2019 Act is yet to come into force. See, for instance, this post. However, some are of the view that Section 15 of the 2019 Act, which reads as below, has been brought into force immediately: "Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 shall be omitted and shall be deemed to have been omitted with effect from the 23rd October, 2015."

We are of the view that the entire Act, including Section 15 are yet to be brought into force. Section 15 creates a legal fiction ("shall be deemed") whereby Section 26 is omitted retrospectively, with effect from 23.10.2015. However, it does not talk about when the provision would be brought into force. Both are entirely different. Section 1(2) speaks of bringing into force and Section 15 talks about retrospectivity. Given, Section 1(2), even Section 15 will begin to apply, prospectively or retrospectively, only after Section 15 is notified, either separately or along with some or all the provisions of the 2019 Act.

Whenever the statute provides that a provision will be brought into force immediately, the statute is unequivocal. For instance, Section 1(3) the Companies Act, 2013 states: "(3) This section shall come into force at once and the remaining provisions of this Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint..." It is apparent from the emphasised portion that the Companies Act, 2013 clearly shows when Section 1 is brought into force: "come into force at once". Other examples  are given below:

• Section 1(2) of the Institute of Trans-Disciplinary Health Sciences and Technology (Amendment) Act, 2017 (Karnataka): "It shall come into force at once."
• Section 1(2) of the the Constitution (Application to Jammu and Kashmir) Order, 2019. "(2) It shall come into force at once."
• Section 1(3) of the Additional Emoluments Compulsory Deposit Act, 1974: "(3) It shall be deemed to have come into force on the 6th day of July, 1974, except section 14 which shall come into force at once."

No such phraseology is found in Section 15. It is pertinent to note that about six laws that recently received presidential assent such as the Motor Vehicles (Amendment) Act, 2019, the Consumer Protection Act, 2019, etc. were published for general information, along with the 2019 Act, on 09.08.2019. Therefore, there is nothing special in the notification except to the extent provided in the notification's title: it was "published for general information". 

For all these reasons, Section 15 of the 2019 Act has not been brought into force as on 29.08.2019.

Part II

What then is the need for the phrase "Save as otherwise provided in this Act" in Section 1(2)? Our view is that the provision seems to be a comprehensive but standard phrase used as regards bringing into force of a provision and serves no specific purpose under the 2019 Act. Such a usage is not altogether new. There have been several statutes where the above phrase was used but the entire statute was brought into force through a notification on a subsequent date. A few examples are given below:

• Section 1(2) of the National Bank for Agriculture and Rural Development (Amendment) Act, 2000 stated: "(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in Official Gazette, appoint." This statute was brought into force on 1 February 2001. The statute does not contain any provision by which one could infer that the provision came into force at once.
• Section 1(3) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 provides: "(3) Save as otherwise provided in this Act, it shall come into force on the 1st day of April, 2016." Like the 2019 Act, it did not contain any provision by which one could infer that the provision came into force at once.
• The Code of Criminal Procedure (Amendment) Act, 2005 is another example. Section 1(2) originally provided: "(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." Again, it did not contain any provision by which one could infer that the provision came into force at once. In fact, the Act was not even brought into force. It was done only after the Code of Criminal Procedure (Amendment) Amending Act, 2006. On this, the Bombay High Court held in Chandra Kanjappa v Maharashtra: "By the Code of Criminal Procedure (Amendment) Act of
  2005, (Act No.25 of 2005), extensive amendments to the Code of Criminal Procedure, 1973, (Code) were introduced. By Section 42 of the said Act, the First Schedule to the Code was amended. By Clause (f)(iii) thereof, the offence punishable under Section 324 of IPC was made "non-bailable." However, the said Act did not come in force, at once." (emphasis supplied). 

There are many more examples such as the Compensatory Afforestation Act, 2016. In all these cases, the commencement clause used the phrase "Save as otherwise provided in this Act" but the statute was brought into force much later. 

Consequently, no special meaning could be attributed to the phrase "Save as otherwise provided in this Act" in the absence of a clear legislative mandate that Section 15 was brought into force on enactment of the 2019 Act. Provisions as regards retrospectivity are totally different from those dealing with commencement, as Part I of this post clearly illustrates. To conclude, as on date (30.08.2019), none of the provisions of the 2019 Act has been brought into force.