The need to assess not only the entirety of the legislative circumstances but also the judicial decision invalidating the amending statute is also apparent from the decision in Shaukat Khan v. State of Andhra Pradesh, 1974 (2) SCC 376; 1974 INSC 118. The case concerned the Hyderabad Inams Abolition Act, 1955 which was eventually repealed as amended by the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1967. During proceedings concerning the validity of the 1955 Act before Supreme Court , the High Court of Andhra Pradesh Act invalidated the entirety of the 1967 legislation. Before Supreme Court , a question arose that as the 1967 statute had repealed the 1955 law, and the 1967 statute itself had been struck down, whether the 1955 was now in force. Justice P Jaganmohan Reddy, speaking for a two-Judge Bench of Supreme Court observed:
“10 . On the main question whether the impugned Acts were revived by reason of the High Court of Andhra Pradesh striking down Act 9 of 1967, a perusal of that judgment would show that the Division Bench considered the question and held that as the inam lands had already vested in the Government on July 20, 1955, there was no need to abolish inams which already stood abolished long before the date when the impugned Act, namely, Act 9 of 1967, was enacted.”
The learned Judge quoted the judgment of the High Court of Andhra Pradesh where the High Court had held:
“The effect of the impugned Act in pith and substance is really not agrarian reform but to destroy the rights of the inamdars and others who were assured compensation under the repealed Act.”
Based on this finding of the High Court , Justice Jaganmohan Reddy concluded:
“10 . … The striking down of Act 9 of 1967 must be construed in the light of the reasoning given by the learned Judges of the Division Bench of the Andhra Pradesh High Court that the Abolition Act 8 of 1955 and the Amendment Act 10 of 1956 had already achieved the result which Act 9 of 1967 was intended to achieve, and once the inams had already vested in the Government, compensation had to be paid in accordance with the terms of those laws and cannot again be re-opened by vesting the inams which had already vested as if they had not already vested in the Government.
This postulates the existence of the Acts impugned before us as a ground for striking down Act 9 of 1967, so that when the High Court says that the latter Act 9 of 1967 is void it could not have intended to say that even the Acts now impugned before us did not revive.”
Supreme Court in Shaukat Khan observed that the High Court of Andhra Pradesh had invalidated the 1967 statute precisely on the ground that the inams had already vested in the state government under the 1955 law and the regime of compensation could not subsequently be altered by the 1967 statute. This reasoning presupposes the existence of the 1955 laws being in force. The High Court could not invalidate the 1967 law but also simultaneously enforced the repeal of the 1955 statute which it had expressly stated would govern compensation.
Thus, where a court assesses whether a law revives or not after an amendment or subsequent enactment is invalidated, the court must assess both the totality of the legislative circumstances but also the logical consequences that flow from the decision to invalidate the statute or provision in question.
An even more explicit demonstration of this rationale can be found in Indian Express Newspapers (Bombay) v. Union of India , 1985 (1) SCC 641; 1984 INSC 231. The case concerned a 1977 notification under section 25 of the Customs Act, 1962 granting a wholesale exemption from customs duty on newsprint. However, by a fresh notification in 1981, the Union Government amended its policy and stated that for the printing of newspapers, books and periodicals, the exemption from customs duty would only apply beyond 10 per cent. In effect, the 1981 notification imposed a 10 per cent ad valorem customs duty on imported newsprint from newspapers and periodicals. The 1981 notification was struck down by a three-judge bench of Supreme Court on the ground that it impermissibly restricted the freedom of speech guaranteed by Article 19 of the Constitution.
On the secondary question of whether the earlier 1977 notification stood revived, the Court held that it did. Justice ES Venkataramiah, as the learned Chief Justice then was, speaking for the Court held:
“107. … We may also state that the legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, ‘substitution’, or ‘supersession’. It depends upon the totality of the circumstances and the context in which they are used.
[…]
109. Hence, if the notification dated July 15, 1977 cannot revive on the quashing of the impugned notifications, the result would be disastrous to the petitioners as they would have to pay customs duty of 40% ad valorem from March 1, 1981 to February 28, 1982 and 40% ad valorem plus Rs 1000 per MT from March 1, 1982 on wards. […] Such a result cannot be allowed to ensue.”
The Court in Indian Express Newspapers (Bombay) observed that the consequence of the pre-existing law not reviving would in fact result in greater prejudice to the petitioners than if there had been no judgment of the court at all. If after the 1981 notification was invalidated, the 1977 notification granting a general exemption from customs duty on newsprint did not continue in force, the net outcome would be a higher customs duty on news publishers. This was because the original notification itself was framed in the manner of an exemption from customs duty.
The above extract makes it clear that in addition to the question of whether the legislative intent was indivisible, the issue of the legal effect of invalidation in cases of substitution must take into account the facts of a given case, the rationale for invalidation, and the practical effect of the unamended text being revived or not.