Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute.
Lord Esher, M.R., while dealing with legislation in incorporation in In re. Wood’s Estate (1886) 31 Ch.D. 607 pointed out at page 615:
“If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.”
Lord Justice Brett, also observed to the same effect in Clark v. Bradlaugh (1881) 8 Q.B.D. 63 at 69:
“….. there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does no affect the second.”
This was the rule applied by the Judicial Committee of the Privy Council in Secretary of State for India in Council v. Hindustan Cooperative Insurance Society Ltd. The Judicial Committee pointed out in this case that the provisions of the Land Acquisition Act, 1894 having been incorporated in the Calcutta Improvement Trust Act, 1911 and become an integral part of it, the subsequent amendment of the Land Acquisition Act, 1894 by the addition of sub-section (2) in section 26 had no effect on the Calcutta Land Improvement Trust Act, 1911 and could not be read into it.
Sir George Lowndes delivering the opinion of the Judicial Committee observed at page 267: “In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second:
x x x x x x x
The independent existence of the two Acts is, therefore, recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. x x x It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.”
So also in Ramswarup v. Munshi & Ors., it was held by Supreme Court that since the definition of “agricultural land’ in the Punjab Alienation of Land Act, 1900 was bodily incorporated in the Punjab Pre-emption Act, 1913, the repeal of the former Act had no effect on the continued operation of the latter.
Rajagopala Ayyangar, J., speaking for the Court observed at pages 868- 869 of the Report:
“Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. x x x x In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Pre-emption Act and the expression ‘agricultural land’ in the latter Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it.”
The decision of Supreme Court in Bolani Ores Ltd. v. State of Orissa also proceeded on the same principle. There the question arose in regard to the interpretation of section 2(c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter referred to as the Taxation Act). This section when enacted adopted the definition of ‘motor vehicle’ contained in section 2(18) of the Motor Vehicles Act, 1939.
Subsequently, section 2(18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in section 2(c) Or the Taxation Act. The argument advanced before the Court was that the definition in section 2(c) of the Taxation Act was not a definition by incorporation but only a definition by reference and the meaning of ‘motor vehicle’ in section 2(c) must, therefore, be taken to be the same as defined from time to time in section 2(18) of the Motor Vehicles Act, 1939.
This argument was negatived by the Court and it was held that this was a case of incorporation and not reference and the definition in section 2 (18) of the Motor Vehicles Act, 1939 as then existing was incorporation in section 2(c) of the Taxation Act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the definition of ‘motor vehicle’ in section 2(c) of the Taxation Act.
It is, therefore, clear that if there is mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears, the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute.
Reference
Mahindra & Mahindra Ltd vs Union Of India: 1979 AIR 798, 1979 SCR (2)1038