Topic 1: Prospective and Retrospective Operations of Statutes

Operations of Statutes
There is a legal maxim; ‘A new law ought to be prospective, not retrospective in its operations.’
Ordinarily, a legislature has power to make prospective laws, but Art.20 of the Indian
Constitution, 1950 provides certain safeguards to the persons accused of crime and so Art. 20(1)
of the Indian constitution imposes a limitation on the law making power of the constitution. It
prohibits the legislature to make retrospective criminal laws however it does not prohibit a civil
liability retrospectively i.e. with effect from a past date. So a tax can be imposed retrospectively.
Clause (1) of the Article 20 of the Indian Constitution guarantees rights against ex-post facto
laws. It provides that “ no person shall be convicted of any offence except for violation of a law
in force at the time of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.” The American Constitution also constitutes a similar provision
prohibiting ex-post facto laws both by the Central and State legislatures.

Prospective Operation of Statutes

The dictionary meaning of the word prospective with reference to statutes shows that it is
concerned with or applying the laws in future or atleast from the date of commencement of the
statute. It is to be noted that the Doctrine of Prospective overruling is evolved by the Supreme
Court for the first time in India in I.C. Golak Nath Vs. State of Punjab A.I.R. 1967 SC 1643.
In this case 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 which takes away or abridges fundamental right 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 the principle would operate only in 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 following three restrictions on the application of this principle
a. That the principle of prospective overruling would for the time being used in
constitutional matters only;
b. That the Supreme Court alone, and no other court, would have the authority to apply
the principle; and
c. The scope of the prospectively to be imposed is a matter of discretion for the
Supreme Court which is to be moulded in accordance with the justice of the cause or
matter before it.

Thus, the principle of prospective overruling recognises the role of the Supreme Court with respect to both
law and policy making. The area of application of this principle is also quit e narrow in the
sense that it has been applied only in respect of constitutional amendment. The principle also
envisages that an overruling decision shall not affect intermediate transactions made on
the basis of the overruled decision but will apply to future matters. In other words, a law
declared invalid may not have any repercussions on the transactions arid vested rights already
long settled in the past but may operate only with respect to transactions and rights likely to
come up in future, that is to say, after the judicial invalidation. While retrospective
overruling could often result to harsh results when vested rights are interfered overruling
could often result to harsh results when vested rights are interfered with or when actions
have already been taken in accordance with the then existing rules, prospective overruling does away
with such hardships.

Reasons for the Evolution of the d octrine

T h e r e a p p e a r s t o b e at least following two reasons for the birth of the principle of prospective
overruling, in India:

a) The power of Parliament to amend the fundamental rights, and the First and the
Seventeenth Amendments specifically, had been upheld previously by the Supreme
Court in Shankari Prasad Vs. Union of India, A.I.R. 1951 SC 458, and Sajjan Singh Vs.
State of Rajasthan, AIR. 1965 SC 845.
b) During 1950 to 1967, a large body of legislation had been enacted bringing about an
agrarian revolution in India.

Retrospective Operation of Statutes

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 committed before the alteration. When such changes make a
previously committed lawful act unlawful in a retroactive manner, and are known as an ex post
facto law or retroactive law.
Retrospective operation of law therefore means application of law to facts or actions which exist
even prior to the date the said law is promulgated. It takes into its ambit activities existing prior
to the date of the new law and thus operates from a date earlier than the date they come into
effect.

Doctrine of Retrospective Operation of Statutes

Retrospective operations implies to the application of law to facts or actions which existed prior
to the enactment of the said law. Such laws change or alter the legal consequences of acts which
took place prior to its enactment. A retrospective law takes away or impairs an existing right by
creating or imposing a new liability for an act committed before the enactment of a law.
However retrospective operation of law does not apply to penal provisions. A retrospective
legislation is contrary to the general principle of prospective operation of law which regulates
future acts without changing the character of past transactions carried on upon the faith of the
then existing law. Article 20 (1) of the Constitution of India provides protection against
retrospective operation of law commonly known as ex post facto law which changes the legal
consequences of actions committed before the enactment of the law. The question which is faced
during the applicability of retrospectively is whether a statue or law should be given a
retrospective effect which takes away or impairs an existing right or imposes a new liability.

Application of Retrospective Operation of Statutes

In most legal systems, retrospective laws which punish the accused for acts, that were lawful
when committed, are rare and not permissible. More commonly, changes retroactively worsen
the legal consequences (or status) of actions that were committed, or relationships that existed,
by bringing it into a more severe category than it was in when it was committed; by changing the
punishment or recompense prescribed, as by adding new penalties, extending sentences, or
increasing fines and damages payable; or it may alter the rules of evidence in order to make
exoneration more difficult than it would have been. On the other hand, retrospective laws which
deal with amnesty may decriminalize certain acts and grant pardon by reducing punishments or
change possible consequences for unlawful acts retroactively by repealing previous laws and
making it no longer applicable to situations to which it previously was, even if such situations
arose before the law was repealed.

A Law does not become retrospective, only because a part of the requisite for its action is drawn
from a time antecedent to its passing. In some cases where a new offence is created or a penalty
is increased, the legislature is not prevented from enacting an ex post facto law, but if any such
law takes or impairs any vested right acquired under an existing law or creates a new obligation,
imposes a new duty or attaches a new disability in respect to the transactions on considerations
already past, such laws must in express terms state that it is to be applicable retrospectively and
the necessary implication of such retrospectively shall be borne out from the language employed
by the Legislature.
Ex-Post Facto Law
The term Ex-Post Facto, retroactive and retrospective are synonyms in judicial use and such
terms makes the law look backs on acts which have already taken place. It changes the legal
consequences of past events as if the law had been different when the event took place and
imposes retrospectively upon acts already done or increase penalties. In relation to criminal law,
it may criminalize actions that were legal when committed or it may aggravate the crime by
bringing it into a more severe category than it was before or it may increase the punishment of a
crime by adding new penalties or extending the terms or it may alter the rules of evidence in
order to make conviction for a crime more likely than it would have been at the time of the
action for which a defendant is prosecuted.

A law may have an ex post facto effect without being technically ex post facto. For example,
when a law repeals a previous law, the repealed legislation no longer applies to the situations it
once did, even if such situations arose before the law was repealed. Ex post facto laws are seen
as a violation of the rule of law as it applies in a free and democratic society. Most jurisdiction
do not permit retrospective legislation to come into force, though some have suggested that judge
-made law is retrospective as a new precedent applies to events that occurred prior to the judicial
decision. The principle of prohibiting the continued application of these kinds of laws is also
known as nullumcrimen, nullapoena sine praevialegepoenali, which means that there exists no
crime and no punishment without a pre -existing penal law. In some nations that follow the
Westminster system of government, such as the United Kingdom, ex post facto laws are
technically possible as the doctrine of parliamentary supremacy allows parliament to pass any
law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex
post facto legislation may be prohibited.

Criminal Applicability
Mostly applicability of Ex-post facto laws to criminal liability is frowned upon. A canon of
interpretation of penal provisions does not permit penal provisions to have retrospective effect of
law. A penal character in certain offences makes certain offences punishable as offences for the
first time; usually no case is maintainable under such a circumstance as respect to acts done
before the commencement of such an act. To punish a person for his act which was not an
offence at the time of committing the act, a subsequent legislation which came into operation
after the commission of the act will per se be unconscionable besides amounting to negation of
fair play and justice.

The Apex Court in Vijay vs. State of Maharashtra (2014) SCC 1 held that a penal statue which
creates new offences are always prospective, but penal statues which create new disabilities,
though ordinarily prospectively are interpreted to be retrospective in nature where there is a clear
intendment that they are to be applied to past events.
Conclusion
It is now settled that unless the terms of a statute expressly so provide or necessarily require it,
retrospective operation should not be given to a statute so as to take away or impair an existing
right or create a new obligation or impose a new liability otherwise than as regards matters of
procedure. The general rule is that all statutes other than those which are merely declaratory or
which relate only to matters of procedure or of evidence are prima facie prospectively and
retrospective operation should not be given to a statute so as to affect, alter or destroy an existing
right or create a new liability or obligation 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. 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 in its
operation, the only exceptions being in case of declaratory or clarificatory amendments or
statutes.