Commencement of Statutes

Pattern one: a stated date. "It shall come into force on the 1st day of April, 2024." Nothing more is needed.

Pattern two: appointed day. "It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." The Act then does nothing at all until the notification issues. A frequent addition is that different dates may be appointed for different provisions, and for different States, so that one Act may be partly in force and partly not.

Pattern three: silence. The Act says nothing about commencement. That is where section 5 does its work.

Section 5: the default

Section 5(1): where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent, in the case of a Central Act made before the commencement of the Constitution, of the Governor General, and in the case of an Act of Parliament, of the President.

So the rule is: if the Act is silent, assent is commencement. It is only where the Act says nothing that the two dates coincide, and that is precisely why students who assume they always coincide get it wrong: they are applying the residual rule as though it were the general one.

Section 5(3): unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.

That sentence repays reading twice. It means the Act is in force from the first moment of the day of commencement, that is, from midnight at the start of that day, and not from some hour during it. An Act commencing on 1 April 2024 governs an act done at one minute past midnight on 1 April 2024.

Section 22: the gap between passing and commencement

An Act that is to be brought into force later usually needs machinery ready on the day it starts: rules made, a tribunal constituted, forms prescribed, officers appointed. If the rule-making power could not be exercised until the Act commenced, the Act would come into force with nothing in place.

Section 22 solves it. Where, by any Central Act or Regulation which is not to come into force immediately on the passing of it, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any court or office or the appointment of any Judge or officer, or with respect to the person by whom, the time when, the place where, the manner in which, or the fees for which anything is to be done under the Act, then that power may be exercised at any time after the passing of the Act; but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act.

Two halves, and both are asked. The power may be exercised early. What is made under it lies dormant and takes effect only when the Act does.

Two related provisions worth naming

Section 23 governs a rule-making power that is expressed to be subject to previous publication, setting out how a draft is published, how long is allowed for objections and suggestions, and that the authority shall consider them.

Section 5A is printed in the Act as repealed. It dealt with the coming into operation of a Governor General's Act and was repealed by the Adaptation of Laws Order 1947.

Commencement earlier than assent: the deeming provision

This looks impossible and it is common, and it is asked directly.

The Protection of Human Rights Act, 1993 received assent on 8 January 1994, and its section 1(3) provides that it shall be deemed to have come into force on the 28th day of September, 1993, which is more than three months before the assent. How can an Act be in force before it exists?

The answer is that a legislature can date the operation of its own Act backwards. Section 1(3) is a deeming provision: it directs that the law be applied as though the Act had been in force from the earlier day. Nothing physically happened on 28 September 1993; what happened is that the Act, once made, took effect as from that day.

Two things follow, and both belong in an answer.

Section 5 has nothing to do with it. Section 5(1) supplies a date only where the Act is not expressed to come into operation on a particular day. An Act with a deeming provision is expressed, so the default never arises and the date of assent is not the date of commencement.

It is retrospective operation, and it is subject to the ordinary limits. Backdating the commencement makes the Act apply to the period between the deemed date and the assent, so everything in [Prospective Application and Retrospective Effect] applies to it: the legislature can do this because it has said so expressly, and article 20(1) still forbids it in respect of offences and punishments, so a person cannot be convicted of an offence created by an Act deemed to have commenced before they acted.

Why a legislature does it. Ordinarily because an Ordinance or a scheme was already operating from the earlier date, or because an event fixed the date and the legislation took time to pass, and the intention is that no gap should open between the two.

The three dates therefore have to be checked separately even where they look settled, and the order in which they fall is not fixed: commencement is usually after assent, it is sometimes the same day by force of section 5(1), and it is occasionally before assent by force of a deeming provision.

Commencement in stages, and provisions never commenced

Two real consequences that a good answer mentions.

Different dates for different provisions. Where the Act allows it, the Government may bring Chapter II into force this year and Chapter V next. Until a provision is notified, it is not law, and a citation of it is a citation of nothing.

A provision that is never commenced. It happens. A section can sit on the statute book for decades without ever being brought into force. It is not repealed, and it is not in force. Any answer that treats the presence of a section in the printed Act as proof that it operates is wrong, and the only safe method is the one this book follows throughout: check the commencement, not merely the text.

A worked example

The fictitious Consumer Grievances Act 2024 is passed by both Houses on 12 February 2024, receives the President's assent on 28 February 2024 and is published the same week. Section 1(3) says: "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." Section 30 gives the Central Government power to make rules prescribing the form of a complaint. A notification of 20 August 2024 brings sections 1 to 20 into force on 1 October 2024, and says nothing about sections 21 to 35.

When is the Act in force? Sections 1 to 20 are in force from the first moment of 1 October 2024, by section 5(3), which puts commencement at the expiration of the day preceding. Sections 21 to 35 are not in force at all.

Does section 5 apply? No. Section 5 is the default for an Act that is not expressed to come into operation on a particular day. This Act is expressed to come into force on an appointed date, so the default never arises and 28 February is not commencement.

Could the rules have been made before 1 October? Yes. Section 22 allows the rule-making power to be exercised at any time after the passing of the Act, so rules prescribing the form of a complaint could be made in, say, July. But they would not take effect until 1 October, when the Act commenced.

Is a complaint made on 30 September governed by the Act? No. On that day the Act was not in force.

And a complaint made at 12.30 a.m. on 1 October? Yes. Section 5(3) puts the Act in force from the very start of the day.

Distinctions table

What this does NOT mean

Assent is not commencement, except where the Act is silent and section 5 supplies the default.

Publication is not commencement. An Act may be published months before it is brought into force.

A section printed in the Act is not necessarily in force. Provisions can be, and are, left uncommenced.

Commencement is not retrospectivity. Commencement fixes when the Act begins to operate; whether it reaches back over events before that day is a different question, and it is the subject of [Prospective Application and Retrospective Effect].

Rules made under section 22 are not in force when they are made. They take effect when the Act does.

Limits and criticism

The appointed-day technique gives the executive control over when a law passed by the legislature begins to bind, and that is a standing constitutional criticism: Parliament decides what the law is, and the Government decides when, and sometimes whether, it is law.

Uncommenced provisions are hard to discover. The printed Act shows the text; whether a section has been notified has to be traced through Gazette notifications, and that is exactly where the error rate is highest.

Section 5(3) is precise and is rarely noticed. Many answers say an Act commences "on" a day without knowing that the statute has fixed the hour at the very start of it.

Quick revision

Commencement: General Clauses Act 1897, s.3(13), the day on which the Act or Regulation comes into force.

Three dates: passing, articles 107 and 108; assent, article 111, at which the Bill becomes an Act and takes its year and number; commencement, s.3(13).

s.5(1): where a Central Act is not expressed to come into operation on a particular day, it comes into operation on the day of assent, of the President or, before the Constitution, of the Governor General. It is the DEFAULT, not the general rule.

s.5(3): unless the contrary is expressed, an Act comes into operation immediately on the expiration of the day preceding its commencement, so it binds from the first moment of that day.

s.22: where an Act is not to come into force immediately, the power to make rules, bye-laws or orders about its application, courts, offices, appointments, persons, time, place, manner or fees may be exercised at any time after the passing of the Act, but what is made does not take effect until commencement. s.23 governs previous publication. s.5A is repealed.

Staged commencement is common; an unnotified provision is not law.

Test yourself

1. Define commencement, and distinguish it from assent.

Section 3(13) of the General Clauses Act 1897 defines commencement, used with reference to an Act or Regulation, as the day on which the Act or Regulation comes into force. Assent is the President's declaration under article 111 that he assents to a Bill passed by both Houses, at which point the Bill becomes an Act and receives its year and number. The two coincide only where the Act does not express a day of commencement, in which case section 5(1) makes the date of assent the date of commencement.

2. What does section 5(3) add, and why does it matter?

Section 5(3) provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It matters because it fixes the hour: an Act commencing on 1 April is in force from the first moment of 1 April and not from some point during that day, so conduct at a minute past midnight is already governed by it.

3. Explain section 22 and the reason for it.

Section 22 provides that where a Central Act or Regulation is not to come into force immediately on its passing, and it confers a power to make rules or bye-laws, or to issue orders about the application of the Act, the establishment of a court or office, the appointment of a Judge or officer, or the person, time, place, manner or fees for anything to be done under it, that power may be exercised at any time after the passing of the Act, but what is made or issued does not take effect until the Act commences. The reason is practical: an Act brought into force later needs its rules, forms and machinery ready on the day it starts, and without section 22 they could not lawfully be made in advance.

4. An Act says it shall come into force on a date to be notified, and no notification has issued. Is a person bound by it?

No. Until the notification appoints a date, the Act is not in force, and conduct before that date is not governed by it. Section 5 does not assist, because it applies only where the Act is not expressed to come into operation on a particular day, and an Act commencing on an appointed date is so expressed. The Act remains on the statute book, and until commencement it imposes no obligation on anybody.

5. Can part of an Act be in force and part not?

Yes, wherever the commencement provision permits different dates to be appointed for different provisions, which is a common drafting form. The Government may then bring some chapters into force and leave others for later, and a provision that has not been notified is not law however long it has been printed in the Act. It follows that citing a section requires checking that it has been brought into force, and not merely that it appears in the text.

6. Distinguish commencement from retrospective operation.

Commencement answers when an Act begins to operate at all; retrospective operation answers whether, once it operates, it reaches back over events that occurred before that day. An Act commencing on 1 April 2024 ordinarily governs only what happens from that day, because of the presumption that a statute speaks to the future, and it will reach earlier events only where the legislature has said so expressly or by necessary implication, or where the provision is procedural, beneficial without detriment, or declaratory.