In the case of Shamarao Parulekar v. District Magistrate, Thana, 1952 (2) SCC 1; 1952 INSC 63, the Preventive Detention Act, 1950 which at the time was scheduled to expire on 1 April 1952. A few months prior to this, on 15 November 1951, the petitioner (Shamarao) was detained. However, the statute was subsequently amended to extend its lifespan by six months till 1 October 1952. Shamarao contended that the extension of the Act could not extend his detention past 1 April 1952, when the Act was originally scheduled to expire.
Justice Vivian Bose, speaking for a Constitution bench of this Court observed that the amendment to the Preventive Detention Act, 1950 expressly stated that detention orders shall remain in force “so long as the principal Act is in force” and “principal Act” had been defined as the 1950 Act. The learned Judge went on to explain:
“7. … The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
This is the rule in England [citation omitted]; it is the rule in America [citation omitted] and it is the law which the Privy Council applied in India in Keshoram Poddar v. Nundo Lal Mallick. Bearing this in mind it will be seen that the 1950 Act remains the 1950 Act all the way through even with its subsequent amendments. Therefore, the moment the 1952 Act was passed and Section 2 came into operation, the Act of 1950 meant the 1950 Act as amended by Section 2, that is to say, the 1950 Act now due to expire on 1-10 -1952.”
The decision in Shamarao Parulekar outlines the “Pen and Ink” theory, when an amending statute effectuates a substitution, it modifies the original statutory text by omitting certain words and inserting certain other words. After the amending Act, the statute must be read to exclude the omitted words and to include the inserted words.
This rule is subject to certain well-recognised exceptions (such as in respect of rights which have been created under the original statutory text and limitations on the retrospective operation of laws). The exceptions are not of concern to us presently.
Reference
Property Owners Association v. State of Maharashtra (SC)(Constitution Bench) 2024 SCC Online SC 3122