INTERPERTATION OF STATUES

H. Mohamed Abdul Raaziq

BC0150015

RETROSPECTIVE OPERATION OF STATUTES

1. INTRODUCTION: The operation of statutes is of two types, i.e. the Prospective operation
which seeks to govern current activities, events & the Retrospective operation of statutes
which seeks to govern past acts, events as to impair an existing right or obligation. The use of
expression retrospective operation of statutes is at times vague & misleading. In a broad
sense it may be right to say that statute has enactment retrospective operation when it
purports to touch facts or events which took place before the enactment come in to force it is
sometime used in different sense when vested right are sought to be affected . it is some time
loosely used in context of certain functions of law which the law maker deems it necessary to
introduce in existing laws for the purpose of setting certain matters right or avoiding certain
mischief which might possible but for change in law; &this is done by laying down that
certain facts or things which did not exists fact exists shall be deemed to have existed. In this
project I have discussed concept of retrospective operation of statutes, general principals
relating to retrospective operation of statutes & retrospectivity of other statutes with special
reference to penal laws statutes with the help of recent case laws & with reference to some
basic rules enunciated by prominent authors on the construction of statutes.

2. CONCEPT OF RETROSPECTIVE OPERATION OF STATUTES: The word

‘retrospective’ is somewhat ambiguous. It literally means looking backwards; having
reference to a state of things existing before the Act in question. A retrospective statute
contemplates the past and gives to a previous transaction some different legal effect from that
which it had under the law when it occurred or transpired.

“A statute is to be deemed 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 past.”
 In Francis Bennion's Statutory Interpretation, 2nd Edition , the statement of Law is stated as
follows:
"The essential idea of legal system is that current law should govern current activities.
Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the
general body of law to the circumambient air. Clumsy though these images are, they show the
inappropriateness of retrospective laws. If we do something today, we feel that the law
applying to it should be the law in force today, not tomorrow's backward adjustment of it.
Such, we believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United
States Constitution and in the Constitution of many American States, which forbid it. The
true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said
retrospective legislation is 'contrary to the general principle that legislation by which the
conduct of mankind is to be regulated ought, when introduced for the first time, to deal with
future acts, and ought not to change the character of past transaction carried on upon the faith
of the then existing law.

It is well settled that the Union as well as the State Legislatures have plenary powers of
legislation and can legislate prospectively as well as retrospectively Hajee Abdul Shukoor
& Co. vs. State of Madras in this case court observes that Such retrospective legislation may
either be made by express words or by necessary intendment. It, therefore, depends on the
wording of the statute, where express words do not exist, whether by necessary intendment
retrospectively should be inferred and how far backwards. Prospective or retrospective
General rule of construing statute to have prospective effect Exceptions to It does not apply
to disqualifying, curative or clarificatory statutes If on a plain or literal reading legislative
intendment is clear that it is to have retrospective effect and it does not produce any absurdity
or ambiguity thereby, court will give effect thereto Statute which takes away a right under
the existing law is retrospective in nature Statute enacted for the benefit of the community as
a whole may be construed to have retrospective operation.

3. GENERAL PRINCIPLES OF RETROSPECTIVE OPERATION OF STATUTES:

I. 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' 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 which is operative
for a limited period prior to the date of its coming into force and is not operative either oh
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.4This power has also been often used for validating prior executive and legislative acts by
retrospectively curing the defect which led to their invalidity and thus even making
ineffective judgments of competent courts declaring the invalidity. It is not necessary that the
invalidity must be cured by the same Legislature which had passed the earlier invalid Act.
Thus if a state Legislature passes an Act subject which fails outside its competence and
within the competence of Parliament and is for that reason held invalid, Parliament can by
passing retrospective Act which incorporates the State Act cure the invalidity .

II. STATUTES DEALING WITH SUBSTANTIVE RIGHTS: It is a cardinal principle

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. Unless there are words in the statute
sufficient to show the intention of the Legislature to affect existing rights, it is "deemed to be
prospective only 'nova constitutio futurisformam imponere debet non praeteritis’

As a logical corollary of the general rule, that retrospective operation is not taken to be
intended unless that intention is manifested by express words or necessary implication, there
is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to
have larger retrospective operation than its language renders necessary. In other words close
attention must be paid to the language of the statutory provision for determining the scope of
the retrospectivity intended by Parliament.; But if he liter reading of the provision giving
retrospectivity produces absurdities and anomalies, a case not prima facie within the words
may be taken to be covered, if the purpose of the provision indicates that the intention was to
cover it.

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."
 It is not necessary that an express provision be made to make retrospective and the
presumption against retrospectivity may be rebutted by necessary

Implication especially in a case where the new law is made to cure an acknowledged evil for
the benefit of the community as a whole.

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.

In certain cases, a distinction is drawn between an existing right and a vested right and it is
said that the rule against retrospective construction is applied only to save vested rights and
not existing rights. The distinction, however, has not been maintained in other cases. The
word retrospective' has thus been used in different senses causing a certain amount of
confusion. The real issue in each case is as to the scope of particular enactment having regard
to its language and the object discernible from the statute read as a whole.

III. STATUTES DEALING WITH PROCEDURE: 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.16 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".

A change of forum except in pending proceedings 55 is a matter of procedure and, therefore, if

a new Act requires certain types of original proceedings to be instituted before a special
tribunal constituted under the Act to the exclusion of civil courts, all proceedings of that type
whether based on old or new causes of action will have to be instituted before the tribunal.