A CRITICAL ANALYSIS OF RETROSPECTIVE OPERATION

OF STATUTES

Submitted in partial fulfillment for internal component

for the award of the degree B.Com. LL.B. (Hons)

Submitted by

RAJ VISHNOI
BC0160030

Submitted to

Assistant Professor Mr. Balashanmugam

TAMIL NADU NATIONAL LAW

UNIVERSITY
TIRUCHIRAPPALLI – 620 009

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 DECLARATION

I do hereby declare that the doctrinal research entitled “A CRITICAL ANALYSIS OF

RETROSPECTIVE OPERATION OF STATUTES” submitted to Tamil Nadu National

Law School in partial fulfillment of the requirement of the award of the degree of

Undergraduate Department is a record of original work done by me under the supervision and

guidance of Assistant Prof. Mr. Balashanmugam (mentor) Law Department of Tamil Nadu

National Law School and that has not formed the basis of any degree or diploma or fellowship

or any other title to any candidate of any university.

Place: Trichy RAJ VISHNOI

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 ACKNOWLEDGEMENT

Every work accomplished is a pleasure – a sense of satisfaction. How Assistant Professor Mr.

Balashanmugamever a number of people always motivate, criticize and appreciate a work with

their objective ideas and opinions, hence I would like to use this opportunity to thank all, who

have directly or indirectly helped me to accomplish this project.

Firstly, I would like to thank Assistant Professor Mr. Balashanmugam without whose support

this project could not be completed. Next, I would like to thank all people who gave their

valuable time and support for this project. I would also like to thank my college for supporting

me with resources, which beyond any doubt have helped me.

Let me also take this opportunity to thank my family, my friends for their priceless support and

suggestion.

Place: Trichy

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 CERTIFICATE

This is to certify that the doctrinal research entitled “A CRITICAL ANALYSIS OF

RETROSPECTIVE OPERATION OF STATUTES” submitted to Tamil Nadu National

Law School in partial fulfillment of the requirement of the award of the degree Bachelor of

Law done by Raj Vishnoi under the supervision and guidance of Assistant Prof. Mr.

Balashanmugam (mentor) Undergraduate Department of Tamil Nadu National Law University.

Place: Trichy

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 TABLE OF CONTENTS

INTRODUCTION……………………………………………………………. Page No.6

COMPETENCE TO ENACT RETROSPECTIVE LAWS……………. …Page No.7

TEST TO DETERMINE THE RETROSPECTIVITY IN PENAL STATUTES… Page

No.8

RIGHTS ACCRUED BEFORE OPERATION OF A RETROSPECTIVE STATUTE…

Page No.9

STATUTES REGULATING SUCCESSION………………………………… Page No.10

LANDMARK JUDGEMENTS………………………………………………. Page No.10

CONCLUSION…………………………………………………………………Page No.12

BIBLIOGRAPHY……………………………………………………………. Page No.13

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A CRITICAL ANALYSIS OF RETROSPECTIVE OPERATION
OF STATUTES
Raj Vishnoi
BC0160030
INTRODUCTION
Retrospective operation means moving forward looking back1, is an inaccurate term and it
opens for vide interpretation. The retrospective laws are those which affects the pre-existing
rights and obligations2, it can also be termed as the law in which the date of commencement is
earlier than the enactment date.3 The retrospective statutes change the character of validity of
a transaction which was entered in a past, may also invalidate the past transaction or any past
statutes, expressly or impliedly. A retrospective law is one which reaches back4 and gives a
different legal effect to a past transaction which was entered under the shadow of a past statutes
or Act.

It is necessary that a retrospective that it should be expressly stated that the provisions of a
statute are retrospective in their operation if the intention can be gathered by necessary
implication. The principle is, that if the object of an Act, and that object must be gathered from
the words of the enactment, itself requires, unless there is a saving clause in the Act itself to
the effect that it would not apply to pending proceedings.5

The question of its application is decided on the nature of the right to be affected by
retrospective operation. If the right is come under the domain of the “Vested Right”, then the
respective statute or Act or any amendment will be applied prospectively only. The right which
is merely come under the ambit of procedural right then normally that right would not be a
vested right.6

1
Grossman, Joanna L. "Moving Forward Looking Back: A Retrospective on Sexual Harassment Law," Boston
University Law Review vol. 95, no. 3 (May 2015): p. 1029-1048. HeinOnline,
https://heinonline.org/HOL/P?h=hein.journals/bulr95&i=1051.
2
I. D. MacPhail. “Human Rights Burden of Proof, Retrospectivity and Precedent in the House of Lords.” The
Cambridge Law Journal, vol. 61, no. 1, 2002, pp. 1–4. JSTOR, JSTOR, www.jstor.org/stable/4508834.
3
N.S. Bindra’s, “Interpretation of Statutes”, LexisNexis Publication, 11th Edition-2014, p420.
4
Cooley, Constitutional Limitation, p771.
5
Mukherjee v. Ram Ratan Koer, AIR 1936 PC 49, See also Shib Nath v. Porter, AIR 1943 Cal 377.
6
Debi Dutta Moody v. Bellan, AIR 1957 Cal 567.

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 COMPETENCE TO ENACT RETROSPECTIVE LAWS

The legislation of a state is a sovereign authority in the scope to make laws. The legislature,
being a sovereign authority, has competency to enact a retrospective statute. Constitutionality
of any Act or Statutes, whether it operates retrospectively or prospectively, is subjected to the
fundamental right which is enshrined in the Part III of the constitution. If any Act or Statutes
or any amendment operates retrospectively and the same abridges or infringes any fundamental
right then it must be struck down due to its unconstitutional in nature.

In M.L. Baggu v. Murhar Rao7, the subordinate legislature or delegated legislation enacted a
rule 11(E)(3)(b) of the Evacuee Interest (Separation) Rules, 1951 retrospectively and the same
saved evacuees from eviction of 2 year. The amendment or insertion of new rule which
operated retrospectively, was challenged on the ground of the competency of the subordinate
legislature. The Supreme Court held that subordinate legislature is not competent to enact any
Act or Statutes retrospectively unless the competency regarding the retrospective operation, is
expressly stated or mentioned in the parent Act. The court held that the rule is invalid or attracts
the doctrine of ultra vires.

Predominantly the aspect of retrospective legislation has been often been at the disposal of the
legislature to enact provisions defeating the drawings and inferences of the apex court of the
nation. The intention of a legislation must always be just and the basic principles of natural
justice in the multiplicity of their backdrops lay down that legislation and legislature must never
be aimed to demean the scope of any ruling. Post the celebrated case of Vodafone Holdings,
the parliament enacted a legislation that in its true sense overruled the ruling of the apex court
and made the company to pay the tax hence due.

In Khyerbari Tea Co. v. State of Assam, the court held the Assam Taxation (On Goods Carried
by Road or on Inland Waterways) Act, 1961 which operates retrospectively is constitutionally
valid. The petitioner challenged that the imposed tax on the transport of tea abridges or
infringes or violates right to freedom of trade under Article 301. The court rejected the
argument of the petitioner and stated that the said Article has some restriction on its application
and the authority who passed that Act or Statutes has competency to enact a retrospective rule

7
AIR 1956 Hyd. 35.

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and this retrospective application of the above-mentioned Act is solely treated as the restriction
which is enshrined in the Article 301.

TEST TO DETERMINE THE RETROSPECTIVITY IN PENAL

STATUTES

This chapter discusses about the test which are used by the court to determine the
retrospectivity in any penal statutes or Act. The legislative intent is the foremost point to
determine the retrospectivity of any Act. Generally, the retrospective operation of any rules or
any part of an Act or statutes presumed to be unjust, oppressive and negates the very principle
of natural justice unless the same is expressly stated in the Act or statutes. If the Act or statutes
lack of certain or clear intention of the legislature regarding the retrospective operation, then it
must be presumed that the Act or statute would only operates prospectively.8

The court considers the following factors to determines the intent of the legislature when the
statutes do not expressly state the retrospective effects9: -

 General scope and the purview of the statutes

 The remedy sought to be applied
 The status or the provisions of former law that is in question
 The nature of the right affected

In Shah Bhojraj Mills v. Subhas Chandra, the Supreme Court held that remedial or curative
statutes, generally, are always operates prospectively. The specific part of an Act or statutes
may be retrospective effects which the legislature intents to operate it in retrospective effects.
The Act or statutes which is meant for procedural or evidence purpose, must be prospective
even if the contrary intention of the legislation is proved.

In State of Bombay v. Vishnu Ram Chandra10, the Supreme Court decided certain principles
while construing a provision with regard to a retrospective operation and gave guidelines which

8
Rashid Ahmed v. Sate of UP, AIR 1979 SC 592.
9
Zile Singh v. State of Haryana, AIR 2004 SC 5100.
10
AIR 1961 SC 307.

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helps to determine the provision as to whether it operates retrospectively or prospectively,
which are as follows:

 Normally penal statutes operate prospectively, but it can also operate retrospectively if
there is a clear intent of the legislature so as to apply with past events.
 If statutes create new punishment and the language is clearly express some action to
apply retrospectively on specific past event, it would be applied retrospectively.
 If the Act or statutes are designed in order to protect public against some acts which has
harmful character and language of Act clearly admits interpretation or construction in
order to operate it retrospectively, it may be construed retrospectively.
 If any Act or statutes, somehow, impairs vested right, then it should not be applied
retrospectively.

RIGHTS ACCRUED BEFORE OPERATION OF A

RETROSPECTIVE STATUTE

A statute which has retrospective provisions in it, won’t affect the right that was accrued before
a statute came into force unless expressly stated in the statute11. It is not presumed that
interference with existing right is intended by the legislature, and if a statute be ambiguous the
court should lean to the interpretation which would support the existing rights.12

In Ram Lal v. State of UP13, the Supreme Court held that if a court has finalized a right of the
petitioner and the amending Act has a provision which states about the redetermination of the
court finding, then the earlier decision of the court regarding the right of the petitioner would
not be affected by these provisions. The court also stated that re-opening of the court
proceeding was not the true intent of the legislature behind the word “Redetermination”.

In Ningappa v. Abaskhan14, plaintiff filed a suit which was pending before the court and
subsequently Bombay Tenancy and Agriculture Lands Act, 1948, was passed. The court issued

11
CIT, West Bengal v. PM Bagchie Co., [1951] 20 ITR 33.
12
Supra Note-3.
13
(1978) All LJ 1197.
14
AIR 1956 Bom 345.

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a decree in favour of plaintiff. The decree passed by the lower court was challenged before the
Bombay High Court on the ground that the said Act was there when the decree was passed.
The Bombay High Court held that the right, which was given to the plaintiff by the decree, was
accrued at the date of the suit. The date of passing decree has no relevance in this matter.

STATUTES REGULATING SUCCESSION

Statutes which has a retrospective operation of a provision regarding the succession of property
are not applicable on the succession which had already opened, as otherwise the effect will be
to divest the estate from persons in whom it had vested prior to coming into force of the new
statute.15

Sec. 8 of the Hindu Succession Act, 1956 which states the manner in which a property of a
male Hindu shall devolve. Now this provision has been held inapplicable in a case where the
succession was opened before the said Act came into force. 16

LANDMARK JUDGEMENTS

1. Jagdamba Prasad v. Anandi Nath17

In this case some important canons of constructions are noted which are given by the
supreme court in various judgement in order to decide whether an Act or statute or its
any part is retrospective or prospective.
 There is no presumption that the statute which takes away any existing right is
intended to apply to a state of facts which came into existence before its
commencement.
 When the effects of the statute would be to make a transfer, valid which was
previously invalid, to make an instrument, which had no effect at all and from
which the party had liberty to depart as long as he pleased, binding the prima
facie construction of the Act is that it is not to be retrospective.

15
Muhammad Abdus Samad v. Qurban Hussain, ILR 26 All 119.
16
Eramma v. Veerupana, AIR 1966 SC 1879: 1966 (2) SCR 626.
17
(1938) ILR 17 Pat 460, AIR 1938 Pat 337.

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  If it is a necessary implication from the language employed that the legislature
intended a particular section to have a retrospective operation, the court will
give it such an operation because it is obviously competent for the legislature
if it pleases in its wisdom to make the provisions of an Act retrospective.
 But if, on the other hand, the language employed by the legislature is
ambiguous or not clear and explicit, the court must not give a construction to
the new Act which would take away vested rights, in other words, should treat
the Act as prospective.

2. Banwari Gopa v. Emperor18

This case discusses briefly some principle which are key to decide a question that a
statute which repeals or alter the old law can be given retrospective operation.
 Upon the presumption that the legislature does not intend to enact what is
unjust, every statute which takes away or impairs a vested right acquired under
the existing law or creates a new obligation or imposes a new duty or attaches
a new disability in respect of transactions or considerations already passed
must be presumed to be intended not to have retrospective operation.
 If there are words in the enactment which either expressly state or necessarily
imply that the statute is to be given retrospective operation, then the Act should
have retrospective operation even though the consequences may appear unjust
and hard.
 A statute is not to be construed to have a greater retrospective operation than
its language renders necessary, and
 As no person has a vested right in any course of procedure, alterations in
procedure are to be retrospective, unless there is some good reason against it.

18
AIR 1943 Pat 18, p 20, (1943) ILR 22 Pat 175.

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 CONCLUSION

This project mainly distinguishes between the powers possessed by the Legislature and the
exercise of the power. The courts have continually laid stress on the fact that the legislatures
can if they so desire to provide for the retrospective operation of penal statute. The presumption
against retrospective operation and the requirement of express language is more rigorously
implemented in relation to penal statutes, In India, there is a right to protection to the persons
in our society against the retro. In that case, the statute can be construed prospective which
leads to the enforcement of protection of fundamental rights. Wherein the language of the
statute is plain and unambiguous retrospective operations of statutes which can be either civil
or criminal in nature which are considered to be very fundamental in nature. By the virtue of
Indian Constitution and it makers, there is a protection of the citizens from the ex post facto
law because most of the enactments are fair and reasonable in interpretation, there should be a
prospective interpretation to ensure a harmonious and moderate position. Fortunately, Article
20(1) is such a blessing for all the persons because it does not allow the retrospective
interpretation of any statute and hence ensures protection against the ex post facto law. It can
be inferred that having penal statues with retrospective effects are against the principle of
natural justice system and are totally unfair, absurd, unjust, etc.

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 BIBLIOGRAPHY

Articles Referred: -

 Grossman, Joanna L. "Moving Forward Looking Back: A Retrospective on Sexual

Harassment Law," Boston University Law Review vol. 95, no. 3 (May 2015): p. 1029-
1048. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/bulr95&i=1051.

 D. MacPhail. “Human Rights Burden of Proof, Retrospectivity and Precedent in the

House of Lords.” The Cambridge Law Journal, vol. 61, no. 1, 2002, pp. 1–4. JSTOR,
JSTOR, www.jstor.org/table/4508834.

Cases Referred: -

 Mukherjee v. Ram Ratan Koer, AIR 1936 PC 49, See also Shib Nath v. Porter, AIR
1943 Cal 377.

 Debi Dutta Moody v. Bellan, AIR 1957 Cal 567.

 Khyerbari Tea Co. v. State of Assam, AIR 1956 Hyd. 35.

 Rashid Ahmed v. Sate of UP, AIR 1979 SC 592.

 Zile Singh v. State of Haryana, AIR 2004 SC 5100.

 State of Bombay v. Vishnu Ram Chandra, AIR 1961 SC 307.

 CIT, West Bengal v. PM Bagchie Co., [1951] 20 ITR 33.

 Ram Lal v. State of UP, (1978) All LJ 1197.

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  Ningappa v. Abaskhan, AIR 1956 Bom 345.

 Jagdamba Prasad v. Anandi Nath, (1938) ILR 17 Pat 460, AIR 1938 Pat 337.

 Eramma v. Veerupana, AIR 1966 SC 1879: 1966 (2) SCR 626.

 Muhammad Abdus Samad v. Qurban Hussain, ILR 26 All 119.

 Banwari Gopa v. Emperor, AIR 1943 Pat 18, p 20, (1943) ILR 22 Pat 175.

Books Referred: -

 N.S. Bindra’s, “Interpretation of Statutes”, LexisNexis Publication, 11th Edition-2014.

 Cooley, Constitutional Limitation.

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