A discussion on the Prospective and Retrospective operations of statute with examples.
Prospective means law applicable in future laws, which means if any law or regulation which were made is applicable to future acts and Conduct . Retrospective means law applicable to past acts , that means laws which are followed also affect or impaired an existing right or Create or modify obligations for past acts as well. So, let us discuss the topic with relevant important case laws.
Types of Operation of Statutes
The operation statutes are of two types
Prospective Operation
prospective with reference to statutes shows that it is concerned with or applying the laws in the future or at least from the date of commencement of the statute. No effect on
existing rights & liabilities.
Retrospective Operation:
Which seeks to govern past acts, or events and may change an existing right or obligation. A retrospective statute contemplates the past and gives some different legal effect to previous transactions from that date and time it is made applicable . In other words it affects past transactions from Specific date as well as future transactions.
Prospective Operation of Statutes:
Meaning:The future activities and events of the law have been decided to analyze and articulate all the amendments made with respect to the fundamental rights till the day of the decision in the case would continue to remain valid and effective. All the provisions made in the purview of the future are meant to be prospective statutes.
Doctrine of Prospective Overruling: The doctrine of Prospective Overruling originated in the American Judicial System. It dictates that a decision made in a particular case would have prospective operation only and will not carry any retrospective effect on any past decisions.
The basic doctrine of Prospective Overruling has been adopted in the Constitution to decide many highly influenced cases to clear the uncertainty among the cases and to overrule the retrospective statutes and set the absurdity and ambiguity among the constitutionally amended statutes.
Law is dynamic and change in law is bound to happen and interpretation by the court is also required from time to time and the constitution is the paramount law of the land,Amendments also required in constitution from time to time as per needs as per need and requirements .
Reasons for the Evolution of the Doctrine of Prospective overruling :
Shankari Prasad Vs. Union of India, A.I.R. 1951 SC 458. Parliament can amend any part of the Constitution including fundamental rights.
There appear to be at least following two reasons for the birth of the principle of prospective overruling, in India:
From 1950 to 1967, a large body of legislation had been enacted bringing about an agrarian revolution in India.
validity of the First Constitution Amendment Act, of 1951 challenged in the case of Shankari Prasad Vs. Union of India, A.I.R. 1951 SC 458.
The power of Parliament to amend the fundamental rights, and the First and the Seventeenth Amendments in the constitution related to restricting or abridging fundamental rights had been upheld by the Supreme Court in Shankari Prasad Vs. Union of India, A.I.R. 1951 SC 458.
The Supreme Court held that:
The powers to amend the constitution, including the fundamental rights, contained in Art. 368 of the Constitution.
The word law in Art-13(2) did not include ‘an amendment of the constitution made in exercise of the constituent power.
The result being that the Parliament by law may amend even the fundamental rights suggesting that Parliamentary amending power under Art-368 was stronger than the Part-III of the Constitution. Subsequently, many constitutional amendments were made such as 4th and 7th amendments related to Part-III
Sajjan Singh Vs. State of Rajasthan, AIR. 1965 SC 845.
In this case the 17th Amendment, which added several legislations to the 9th Schedule making them immune from Judicial review on the grounds of violation of fundamental rights, was challenged. Though this case reiterated the opinion of Shankari Prasad’s case, Justice Hidayathullah and Mudholkar J. expressed doubts about amendment in constitution restricting or abridging any of the fundamental rights and whether limitation on the power of parliament to amend fundamental rights already created.
I.C. Golak Nath Vs. State of Punjab A.I.R. 1967 SC 1643. Parliament can’t amend fundamental rights and the effect of this Judgment is perspective only, called prospective overruling.
Supreme Court for the first time in India in this case, three Writ Petitions were filed by the son, daughter and grand daughters of Golaknath challenging the inclusion of Punjab Security of Land Tenures Act, 1953 in the 9th schedule of the Constitution , on the ground that the 1st, 4th and 17th Amendments abridging the fundamental rights were unconstitutional, other two petitions related to the inclusion of Mysore Land Reforms Act, 1962 in the 9th schedule. In this case the Supreme Court held that the Parliament had no power to amend the fundamental rights. Chief Justice Subba Rao posed the questions as to when Parliament could not affect fundamental rights by enacting a bill under its ordinary legislative process even unanimously, how could it then abrogate a fundamental right with only a two third majority and while amendment of less significant Articles of the Constitution require ratification by a majority of States of the Union, how could a fundamental right be amended without this requirement being fulfilled. The learned judge was of the view that the word ‘law’ Art. 13 (2) means both ordinary law as well as constitutional law.
Consequently, the state was not empowered to make any constitutional amendment that takes away or abridged fundamental rights as ‘law’ includes ‘amendment’ as well. Thus, while holding that the Parliament was not empowered to amend fundamental rights, the five learned judges jointly declared that this principle would operate prospectively only in the future and it had no retrospective effect.
Therefore, the name ‘prospective overruling’. The effect of the decision was that all amendments made with respect to the fundamental rights till the day of the decision in the case would continue to remain valid and effective, and after that date, the Parliament would have no power to amend any of the fundamental rights contained in Part III of the Constitution.
Restrictions on the Applications of the Doctrine of Prospective Overruling
The learned judges imposed the following three restrictions on the application of this principle:
principle of prospective overruling is applicable only in Constitutional matters: That the principle of prospective overruling would for the time being used in constitutional matters only;
Only the Supreme Court can apply this principle. That the Supreme Court alone, and no other court, would have the authority to apply the principle; and
Discretion of Supreme court : The scope of the prospectively to be imposed is a matter of discretion for the Supreme Court which is to be molded in accordance with the justice of the cause or matter before it.
Pros and Cons of the operation of statutes
It gave parliament vast power to amend
Its choices and its exercise is essential for public good, to bring about radical changes in the realm of property law.
it saved the rights like right to equality, and the right to freedom, including rights like the right of the press, the right to personal liberty, the right against exploitation, the right to freedom of religion, and cultural and educational rights to Constitutional remedies.
It was hardly criticized that the judgment of the Supreme Court tied the hands of the Parliament and prevented it in the future from ushering in agrarian and other economic reforms so essential reforms for the progress and prosperity of the country are without substance.
Conclusion:
It is submitted that despite KESHAVANANDA Bharati VS. State of Kerala & others over Golaknath, the principle of Prospective Overruling in Golkanath cannot be belittled ( decrease, tail away )for the reason that it did not shackle ( handcuff ) the legislative power absolutely nor it invalidated the laws already included in the 9th schedule and the efforts of the State taken in pursuit of agrarian reforms before Golknath have not been disturbed. It may be considered that the Doctrine of Prospective Overruling does not create a topsy-turvy( Confusion , anarchy, disorder ) situation though the doctrine cannot be hailed ( greet , Coat )as visionary.
Retrospective Operation: Retrospective operation of law therefore means application of law to facts or actions which exist even prior to the date from which law is promulgated. A statute is deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already completed in past
Meaning: Retrospective generally means to take a look back at events that already have taken place. The term is used in situations where the law (statutory, civil, or regulatory) is changed, altered or reinterpreted, affecting acts already committed before the alteration. this impair rights or Create obligation or alter obligations. generally applicable to procedural law but not on Substantive law affecting rights or obligations .
Definitions: In Maxwell on the Interpretation of Statutes.
“Perhaps no rule of construction is more firmly established than thus – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. “
General principles of retrospective operation of statutes
Power to make retrospective laws: The Union Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognized restrictions they can legislate prospectively as well as retrospectively.
Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject.
By retrospective legislation, the Legislature may make a law operative for a limited period prior to the date of its coming into force and operative either at that date or in future. The power to make retrospective legislation enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act.
This power is often used for validating prior executive and legislative acts retrospectively
retrospective Law for curing the defect which may lead to their invalidity or to overrule the judgments of competent courts declaring the Statute invalid. vodafone case under income tax.
clarificatory Amendments from retrospective date Section36(1.)( Va ) of income tax to overrule Various Judgment of High Courts.
validity may be cured by the same Legislature which had passed the earlier invalid Act or any other legislation . For example if a state Legislature passes an Act on a subject matter which falls outside its competence but within the competence of Parliament and for that reason held invalid, Parliament can by passing retrospective Act which incorporates the State Act cure the invalidity .
Statutes dealing with substantive rights have prospective operation generally :
It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair Existing obligations.
In the words of LORD BLANESBURG, “provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.”
LOPES, L.J. observed that “Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect”
It has been said that “the basis of the rule is no more than simple fairness which ought to be the basis of every legal rule.”
The rule against retrospective construction is not applicable to a statute merely “because a part of the requisites for its action is drawn from a time antecedent to its passing”. If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom pre-amended Act was applicable if the amended Act has operation from the date of its amendment and not an anterior date.
Another principle flowing from presumption against retrospectivity is that “one does not expect rights conferred by the statute to be destroyed by events which took place before it was passed.”
Statutes dealing with law of procedure, admissibility of evidence or effect to evidence by court may have retrospective effect and therefore any change apply to all the actions pending or to be taken in feature :
In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. As stated by LORD DENNING: “The rule that an Act of parliament is not to be given retrospective effect applies only to statute’ which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence”.
If the new Act affects matters of procedure only, then, prima facie, “it applies to all actions pending as well as future”. In stating the principle that “a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective”.
The Supreme Court has quoted with approval the reason as expressed in MAXWELL: “No person has a vested right in any course of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode”.
The non-executability of a decree passed by an Indian court against a foreigner at a place in foreign country is also a matter of procedure and the decree becomes executable if the place where it is being executed ceases to be a foreign country and becomes part of India and the Indian Code of Civil Procedure is extended to that place.
Section 45B the Employees’ State Insurance Act, 1948, which enables the Employees’ State Insurance Corporation to recover arrears of contribution from the employers as arrears of land revenue, has been held to be procedural and applicable to arrears falling due before coming into force of the section on January 28, 1968.The reason is that statutes providing for new remedies for enforcement of an existing right are treated as procedural and apply to future as well past causes of action.
Legal position with regard to retrospective operation of a statute:
substantive laws: laws affecting rights or obligations civil nature law generally made applicable prospectively except expressly or impliedly made applicable.
Procedural law:generally retroactive operation and not retrospective operation.
Declaratory law: just to remove any ambiguity related to existing law or explaining the existing law or to reconcile various Judicial decisions has retroactive operation so as to improve the prior laws unless expressly mention retrospective operation .
Explanatory laws: may have retrospective application because Such laws are just to explain the existing law Since operation of law.
Criminal law: retrospective operation in limited cases generally perspective in nature because we can’t Punish Someone for an act which was not offence at the time it was committed retrospectively but if stated in implied manner or expressly Without any ambiguity may have retrospective application .
Case laws:
State of M.P. and another, vs. G.S. Dall & Flour Mills, AIR 1991 SC 772, effect of rescinding exemption only prospective operation:
The Apex Court has observed that: “the notification of 3/71187 amending the 1981 notification with retrospective effect so as to exclude what may be described in brief as ‘traditional industries’ though, like Rule 14 of the deferment rules, the exclusion extends’ even to certain other non-traditional units operating in certain situations.
Though this notification purports to be retrospective, it cannot be given such effect for a simple reason. We have held that the 1981 notification clearly envisages no exclusion of any industry which fulfills the terms of the notification from availing of the exemption granted under it. In view of this interpretation, the 1987 amendment has the effect of rescinding the exemption granted by the 1981 notification in respect of the industries mentioned by it. S. 12 is clear that, while a notification under it can be prospective or retrospective, only prospective operation can be given to a notification rescinding an exemption granted earlier.
In the interpretation we have placed on the notification, the 31, 7 87 notification cannot be treated as one merely clarifying an ambiguity in the earlier one and hence capable of being retrospective; it enacts the rescission of the earlier exemption and, hence, can operate only prospectively. It cannot take away the exemption conferred by the earlier notification”.
Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1994 AIR SCW 3699 : AIR 1994 SC 2623: 1995 Cri LJ 517)
In this case Court laid down the ambit and scope of an amending Act (Act bringing changes but not a repealing Act) its retrospective operation as follows:
A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
Law relating to forum and limitation is procedural in nature, whereas law relating to,, procedural law.
A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished;
A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication.
K. S. Paripoornan v. State of Kerala (1994) 5 SCC 593 @ p. 636 : (1995 AIR SCW 1004 : AIR 1995 SC 1012),
In this case Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus in Para 47 thereof as:
”…In the instant case we are concerned with the application of the provisions of Sub-sec. (1-A) of S.23 as introduced by the Amending Act to acquisition proceedings which were pending on the date of commencement of the Amending Act. In relation to pending proceedings, the approach of the Courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the fiction was commenced and this is so whether the law is change before the hearing of the case at the first instance or while an appeal is pending
Statements against rule of Retrospectively:
Voffice Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd.
It was observed that the question of fairness will have to be answered in respect of a particular statute by taking into account various factors, viz., value of the rights which the statute affects; extent to which that value is diminished or extinguished by the suggested retrospective effect of the statute; unfairness of adversely affecting the rights; clarity of the language used by Parliament and the circumstances in which the legislation was created.
All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospective is so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”
In Yamashita’s case during the pendency of a claim in arbitration the Arbitration Act, 1980 was amended by inserting section 13A which empowered the arbitrators to dismiss a claim if there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim which makes fair resolution of the issues difficult or causes serious prejudice to prejudice to respondent.
The question in the case was whether delay by the claimant in pursuing the claim before the date of enactment of section 13A could be taken into account in considering the question of dismissal under that section and this question was answered in the affirmative. But it does not follow that the rule as stated in the traditional form has been abandoned.
Vijay V. te oj’Maharashtra.
The provision created an obligation on third party .The doctrine of fairness was referred to by the Supreme Court.
In this case a new law which enacted that ‘no person shall be a member of a Panchayat or continue as such who has been Selected as a councilor of Zila Parishad as a member of the Panchayat Samiti’ was held to be retrospective and applicable to existing members of a Panchayat. In holding so S.B. Sinha, J. observed:
“It is now well-settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislation, but to apply it in such a case is a doctrine of fairness. When a new law is enacted for the benefit of the community as a whole, even in absence of a provision the statute may be held to be retrospective in nature.”
Retrospective operation in Criminal matters:there are 4 different cases
Recognition of crime: when wrongful act done, it was not offence but due to retrospective operation of law, Such act may become wrongful act or Criminal nature act
Removal of Crime/ Offence: A new law or amendment in existing law may remove Certain act from list of offences and therefore no more punishable example decriminalization of Sec 377 of The IPC which treat homosexuality as offence applied retrospectively to all Citizens and therefore those charged earlier are no more offence.
Reduction in Punishment: a retrospective operation of an amnesty scheme amendment in Criminal law may reduce Punishment or even release from jail by way of Pardoning Power exercise in certain cases Or release to those already served Certain period or maybe released on Payment of Compounding fee.
increase in Punishment: retrospective amendment may adversely affect a wrongdoer by way of enhancement of Punishment.
Difference between ex post facto laws and Retrospective laws
Ex Post facto laws _ acts on things already happen in past
Retrospective laws – only look backward at events of past
All such laws are necessarily retrospective laws
All Such laws are not ex post facto laws such as amnesty Scheme in taxation law, Criminal Punishment,
Such laws are Prohibited to be formulated in india A20
if explicitly mentioned such laws allowed to be in introduced in india
such laws create new obligations or impair existing vested rights on transactions or acts already done.
focus on all acts Committed in past before Commencement of statute
Retrospective Vs.retroactive
Retrospective- Looking back; contemplating ( thinking seriously on Certain matter) what is past. Having an operation from a past time. ‘Retrospective’ is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing.
The bench observed that ‘retroactivity’ in the context of the statute consists of application of new rule of law to an act or transaction which has been completed before the Rule was promulgated.
‘Retroactivity’ is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called ‘true retroactivity’, consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as ‘quasi-retroactivity’, occurs when a new rule of law is applied to an act or transaction in the process of completion. The foundation of these concepts is the distinction between completed and pending transactions.
The bench quotes from Jay Mahakali Rolling Mills vs. Union of India: “Retrospective” means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force, whereas Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights.
Conclusion:
In conclusion, we can say that the Statutes dealing with substantive rights generally have prospective operation, unless it is expressly or by necessary implications made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect the vested rights or impose new burdens or to impair existing obligations.
To sum up, it is now settled and confirmed by a Constitution Bench of the Hon’ble Supreme Court, that unless the language of the statute expressly so provides it can only be construed to be prospective.
