CORPORATE LAWS UPDATES: August 2010

“RETROSPECTIVE OPERATION OF STATUTES WITH SPECIAL REFERENCE TO PENAL 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.

In Maxwell on the Interpretation of Statutes, 12th Edition, the statement of law in this regard is stated thus:

"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.”

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.

As per a popular quote:

“As a general rule, every statute is deemed to be prospective, unless by express provision or necessary implication it is to have a retrospective effect.”

In B.P. Shanker vs. State of UP (AIR 1959 AlA. HC ) High Court held that intention of legislation is most important argument to determine the retrospective operation of statues if it expressly provides for retrospective operation then effect must be given to same otherwise not.

Binay Kumar Mohanti vs. U P (AIR 1981 Orissa HC)In this case Orissa high court heavily relied upon intention of legislation & regarded as foundation to gather the intention of legislators about retrospective operation of the statutes.

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 re¬strictions'2 can legislate prospectively as well as retrospectively. Com¬petence 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 3. The power to make retrospective legislation enables the Legis¬lature 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 .5

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.6

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’7

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."8 LOPES, L.J. observed that "Every statute which takes away or im¬pairs 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”

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.9 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.;10 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.11

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".12 If that were not so, every statute will be pre¬sumed 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 be¬cause 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.13

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."14

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.15 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".17 If the new Act affects matters of procedure only, then, prima facie, "it applies to all actions pending as well as fu¬ture". In stating the principle that "a change in the law of procedure op¬erates retrospectively and unlike the law relating to vested right is not only prospective".

The Supreme Court has quoted with approval the reason of 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”.18

A change of forum except in pending proceedings55 is a matter of pro¬cedure and, therefore, if a new Act requires certain types of original pro¬ceedings 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 tribu¬nal.19

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.20

On the same principle it was held that an arbitration award made in a foreign State is enforceable in the United Kingdom as a convention award under section 3 of the Arbitration Act, 1975 if the foreign State is a party to the New York con when proceedings for enforcing the award are taken although it went on such a party at the time of the making of the award.21

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, I968.The reason is that statutes providing for new remedies for enforcement of an existing right are treated as proce¬dural and apply to future as well past causes of action.22

IV. RECENT STATEMENTS OF THE RULE AGAINST RETROSPECTIVITY: The classifi¬cation of a statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. For example, a statute of limitation is generally regarded as procedural but if its applica¬tion to a past cause of action has the effect of reviving or extinguishing a right of .suit such an operation cannot be said to be procedural.62 It has also been seen that the rule against retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to its passing,63 For these reasons the rule against retrospectivity has also been stated in recent years avoiding the classification of stat¬utes into substantive and procedural and avoiding use of words like exist¬ing or vested.23

One such formulation by DIXON C.J. is as follows: "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had define by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the matter in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption '24

Another more recent and more simple statement of the rule was made in retory of State for Social Security v. Tunniclijfe 25 by STAUGHTON L.J. the following words: "The true principle is that Parliament is presumed "\ to have intended to alter the law applicable to past events and transac-OJIS in a manner which is unfair to those concerned in them unless a con¬trary intention appears. It is not simply a question of classifying an enact¬ment as retrospective or not retrospective. Rather it may well be a matter of degree-the greater the unfairness, the more it is to be expected that Par¬liament will make it clear if that is intended." The above statement was approved by the House of Lords in Voffice Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd 26 It was observed that the ques¬tion 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 cir¬cumstances in which the legislation was created.6 "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 retro-spectivit 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 em¬powered 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 were answered in the affirmative. But it does not follow that the rule as stated in the traditional form has been abandoned. Indeed the judgment of the Court of Appeal in Tunnicliff where the rule of fairness was stated and applied by STAUGHTON L J overruled by the House of Lords in Plewa v. Chief Adjudication Office 27In that case the question related to the construction of section 53 of Social Security Act, 1986. This section enabled the Secretary of State to recover over-payment of pension from either the recipient or from third parties on whose misrepresentation or failure to disclose over-payment was made. The provision creating an obligation on third

The doctrine of fairness was referred to by the Supreme Court in Vijay v. te oj'Maharashtra.16 In this case a new law which enacted that 'no per-n shall be a member of a Panchayat or continue as such who has been S
ect-d 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 retro¬spective in nature."28

V. LANGUAGE NOT ALWAYS DECISIVE: In deciding the question of appli¬cability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account; 29 but it cannot be stated as an inflexible rule that use of present tense or present perfect tense is de¬cisive of the matter that the statute does not draw upon past events for its operation. Thus, the words 'a debtor commits an act of bankruptcy' were held to apply to acts of bankruptcy committed before the operation of the Act. The words 'if a person has been convicted' were construed to in¬clude anterior convictions. 30 The words 'has made', 'has ceased', 'has failed' and 'has become', may denote events happening before or after coming into force of the statute and all that is necessary is that the event must have taken place at the time when action on that account is take under the statute. The words 'dying intestate' were interpreted by the judicial Committee not as connoting the future tense but as a mere description of the status of the deceased person without any reference to the time of his death So the words, “held on lease', may be only descriptive of land and may apply to lands held on lease prior to or after the coming into force of the Act.’

The words, 'when a person dies', may include a person who died prior to the coming into force of the Act. And the word 'is' through ' normally referring to the present often has a future meaning and may also have a past signification in the sense of 'has been'.31

The real issue in each case is as to the dominant intention of the Legisla¬ture to be gathered from the language used, the object indicated, the nature of rights affected, and the circumstances under which the statute is passed.

4. RETROSPECTIVE OPERATION OF OTHER STATUTES:

a) STATUTES DEALING WITH SUBSTANTIVE RIGHTS

However, there is a well accepted principle of interpretation that every statute is prima facie prospective in its operation so far as substantive rights are concerned, the reason being that the legislature could not have intended affecting vested rights or to impose new burdens retrospectively unless the words compel the court to give effect to it retrospectively. R. Rajagopal Reddy vs. Padmini; CED vs. N. A. Merchant.32

However, a statute is not considered retrospective merely because part of the requisites for its operation is drawn from a time antecedent to its passing. Rao Shiv Bahadur Singh vs. State of U.P. AIR (1953) SC 394 at 398. Similarly, taking into account past events does not make the statute retrospective.

Existing rights and vested rights: A distinction has been drawn by various decisions between an existing right and a vested right and it is said that rule against retrospective construction is applied only to save vested rights and not existing rights. Shri Bakul Oil Industries vs. State of Gujarat AIR (1987) SC 122. Sometimes, in such a situation the word”retroactive” is used instead of the word “retrospective”.

b) STATUTES DEALING WITH PROCEDURE: As a statute affecting or creating substantive rights is presumed to be prospective, a statute dealing with matters of procedure is presumed to be retrospective unless the construction of the statute does not admit of such a presumption. What is a matter of procedure and what is a matter of substance is again to be decided on the wordings of each statute and the consequences involved. Statute dealing with matters of procedure will apply to all actions pending as well as future actions because no one has a vested right in any course of procedure. CWT vs. Shravan Kumar Swarup 33holding Rule 1 BB of W.T Rules enacted w.e.f. 1-4-79 as retrospective from A. Y. 1965-66 onwards as the Rule was procedural as regards valuation. However, there are certain aspects dealing with procedure which may give rise to a vested right and a statute dealing with these rights may not be construed as retrospective in its operation unless it is expressly made retrospective e.g., though statute of limitation is a matter of procedure, on expiry of the period of limitation, a vested right arises and amendment of the period of limitation after the expiry of the said period in a given case will not revive the period of limitation but if the earlier period has still not expired, the new provision will extend that period. J.P. Jani ITO vs. Induprasad D. Bhatt.34

Right of Appeal : Similarly, though Appeal is a procedural part of the law, it is considered as a substantive and a vested right in a litigant and such a vested right cannot be presumed to have been taken away by construing the statute as retrospective unless such a construction would become necessary because of express provisions made in that behalf. A change of forum, for enforcing rights except in pending proceedings, is considered as a matter of procedure and new forum has to be resorted to even in respect of old cause of action. New India Ass. Co. Ltd. vs. Shanti Misra AIR. 35

c) FISCAL STATUTES: As regards fiscal legislation, it is generally presumed that the legislation is not to be construed as retrospective unless it deals with procedure. It is common knowledge that Income-tax Act is to be applied as in force on the first day of the assessment year. Reliance Jute & Ind. vs. CIT.36 Any subsequent legislation enacted during the course of the assessment year will not be applicable for that assessment year or part thereof Karimtharuvi Tea Estate vs. State of Kerala 37unless by express words or by necessary implication it has been made applicable from the date the subsequent legislation has been enacted. CIT vs. Best & Co. 38

Similarly, even a procedural provision which effects finality of tax assessment or reopens a liability which is time barred, cannot be so construed as it is considered a vested right in that respect. J.P. Jani vs. Induprasad Devshankar Bhatt 39

d) REMEDIAL STATUTES : However, a slightly different view has been taken with regard to statutes conferring prospective benefits on antecedent facts. Such statutes are called remedial statutes. The view has been taken that a prospective benefit under a statutory provision which is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective. Thus, a statute can be prospective even when part of the requisite of its action of operation is drawn from the time antecedent to its passing. Similar is the position with regard to Validating Acts which cure the defect in the previous legislation which resulted in the Court holding it invalid.” Such legislation is necessarily made retrospective, curing the defect and saving consequences of illegality. Ujagar Prints v/s. U.O.I.40. However, without curing the defect or lacuna in the law, validating Act cannot merely render judicial verdict invalid as it would amount to exercise of judicial power by the legislature State of Haryana vs. Karnal Co-op. Farmers’ Society. 41

New remedies for existing rights: Similarly, statutes providing new remedies for enforcement of existing rights will apply to future as well as past causes of action, the reason being that such statutes since they do not affect the existing rights are classified as procedural. Dena Bank vs. Bhikabhai Prabhudas Parekh. 42

e) DECLARATORY STATUTES: Declaratory statutes are not governed by the well known presumption against retrospectivity. Such Acts are usually held to be retrospective because the reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error in interpretation. However, mere use of the words “It is hereby declared” or the words “for the removal of doubts” do not make the statute retrospective and in spite of these words the intended declaration or removal of doubt may only be operative from the date the said statute is enacted and not for any earlier period. There are decisions of the Supreme Court on both the sides of this view and ultimately it depends on the nature of phraseology, the intention of the legislature/the judicial error sought to be removed etc. Sometimes, even stronger words have been used such as “shall be deemed always to have been meant” or “shall be deemed never to have included”. These words are very strongly indicative of retrospectivity. Following cases show division of Judicial opinion at the level of Supreme Court also:¬ —

K. M. Sharma vs. ITO 45. It was held that¬ lifting of bar of limitation by Direct Tax Laws amendment Act, 1987 w.e.f 1-4-1989 for reassessment on basis of order passed by Court in any other proceeding under any other law did not apply to earlier A. Ys. Which were already barred on 1-4-1989 .

CIT vs. Kerala Electric Lamp Works 46. Explanation 5 to s. 32 was added by Finance Act, 2001 stating that depreciation would be allowed even when not claimed. It was held that it is not retrospective but effective from A.Y 1-4-2002. The amendment was to supersede judgment of Supreme Court in Mahindra Millscas47.Wordsused in the amendment were “for the removal of doubts, it is hereby declared”.

On the other hand, in Allied Motors (Pvt) Ltd. vs. CIT AIR 48proviso to s. 43B added from 1-4-1988 was given retrospective effect from the date S. 43B was introduced; i.e, 1-4-1984 on the ground that proviso was to remedy unintended consequences and supply obvious omission.

Similarly in CIT vs. Podar Cement Pvt. Ltd.49 it was held that amendments in s. 27 (iii), (iiia) and (iiib) defining “owner of house property” introduced by Finance Act, 1987 was declaratory and clarificatory in nature and was consequently retrospective.

f) FINALITY OR ORDERS : Similarly, an order which is final on the date on which it is made creates a vested right and a subsequent change in the law giving rise to new right of Appeal or Revision is presumed not to affect the finality of the orders already made. Dafedar Niranjan Singh vs. Custodian Evacuee Property and Keshavlal Jethalal Shah vs. Mohanlal.50 However, such a right to finality can only arise if the order is made. If pending the proceedings, further right of Appeal or Revision is conferred; such rights will be available as the order has not been made. Indira Sohanlal vs. Custodian of Evacuee Property and Moti Ram vs. Suraj Bhan.

4. RETROSPECTIVE OPERATION OF PENAL STATUTES:

Penal statutes which create offences or which has the effect of increasing penalties for existing offences can only be prospective by reason of constitutional prohibition regarding retrospectivity imposed by Article 20 of the Constitution. However, in the case of State (through CBI, Delhi) vs. Gian Singh. 52 it is held that if any subsequent legislation downgrades the harshness of the sentence for the same offence, the benefit of the new legislation can be extended to an accused committing the offence prior to the new legislation who is still to be finally sentenced. However, Constitutional prohibition would not apply to penalties levied under tax laws, as “the proceedings in that behalf though considered quasi-criminal, do not constitute offences which only are hit by Article 20.

Penal statutes which create offences or which have the effect of imposing penalties for existing offences will only be prospective by reason of the constitutional restriction imposed by Article 20 of the Constitu-ent.53 Even otherwise they are construed prospective "because it mani¬festly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment".54Therefore, if an Act creates a new offence it will bring into its fold only those offenders who commit ail ingredients of the offence after the Act comes into operation. Same principle has been applied while dealing with a law which af¬fects the power of grant of pardon or remission. Section 433A of the Code of Criminal Procedure which requires that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments, such person shall not be released from prison unless he had served at least fourteen years of imprisonment has been held to be applicable to sentences imposed after the Coming in to force of the section and not to person convicted before its coming in to force.55

Article 20 corresponds to Article 7(1) of the European Convention, the second limb of which provides: 'Nor shall a heavier penalty be imposed than the one that was ap¬plicable at the lime the criminal offence was committed'. It was held by the House of Lords that penalty 'applicable' referred to the maximum sentence for the offence and Article 7(1) was not violated when there was a change in the release regime between the date of the offence, which permitted unconditional release subject to good behavior after serving a part of the sentence whereas the release regime when he was convicted permitted his release after the same period but under a license which placed him under supervision and imposed certain restrictions on his freedom on failure of which lie could be recalled to serve the remaining sentence: R. {on the application of Uitley v. Secretary of State for Home Department,56.

The prohibition of Article 20 of the Constitution to enact retrospective penal laws has no application to a law which only mollifies the rigour of an existing penal law. Indeed, Article 15,1 of the International covenant on Civil and Political Rights, 1966 which was ratified by India on 10-4-1979 and which is included in the definition of Human Rights in Section 2(d) of the Protection of Human Rights Act, 1993, in addition to the safeguards contained in Article 20 of the Constitution, provides: 'If subsequent to the commission of the offence, provision is made by law for imposition of a lighter penalty, the offender shall benefit thereby'. The question whether a penal law which mollifies the rigour of an existing penal law is retro¬spective and to what extent will depend upon the construction of the Act having regard to the well settled rules of construction. In Rattan Lai v. State of Punjab,57 the Probation of the Offenders Act, 1958 did not apply to the area where the offence was committed at the time of commission of the offence or even when the accused was convicted but it was extended to that area where his appeal was pending before the Sessions Judge yet the Supreme Court held that the benefit of the Act could be given to the ac¬cused.

In State v. Gian Singh,58 the accused was convicted for the offence under Section 3(1) of the TADA Act, 1985 for commission of a terrorist act resulting in death of a person for which the only punishment was death sentence under section 3(2) of the Act. The TADA Act, 1985 expired by efflux of time on 22-5-1987 but the proceedings were continued by a sav¬ing clauses under the Act. The Act of 1985 was replaced by the TADA Act of 1987. In this Act in the corresponding Section 3(2) the harshness of the sentence was diluted and the accused could be sentenced to death or life imprisonment. The question before the Supreme Court, where the appeal of the accused and the reference for confirmation of death sentence were pending, was whether the benefit of the dilution of the harshness of death sentence in section 3(2) of the 1987 Act could be given to the ac¬cused and his sentence of death could be replaced by sentence for life im¬prisonment. The Supreme Court in these circumstances gave the benefit of Section 3(2) of the 1987 Act to the accused and sentenced him to life im¬prisonment. The Supreme Court gave two reasons for applying section 3(2) of the 1987 Act. The court first applied a general principle in the case which was stated as follows: "If any subsequent legislation would down¬grade the offence, it would be a salutory principle for administration of criminal justice to suggest that the said legislative benevolence can be ex¬tended to the accused who awaits judicial verdict regarding sentence." The second reason that the Supreme Court gave was that the continued operation of the 1985 Act after expiry under a saving clause for continu¬ance of criminal proceedings in respect of offences committed when the Act was in force became inconsistent, in so far the sentence part of same section 3(2) was concerned, with section 3(2) of the 1987 Act and could not be given 1987. Effect to in view section 25 of the 1987 Act which gave an overriding effect to the Act over any enactment in case of inconsistency.

But the benefit of mollification of ingredients of the substantive offence after conviction during pendency of appeal has not been allowed to the accused. Thus, a notification making a distinction between a small quan¬tity and commercial quantity of brown sugar and thereby making posses¬sion of a small quantity of brown sugar not an offence under Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has not been applied in a case where the notification was issued after commission of the offence and also after the accused was sentenced. Similarly, benefit of mollification of prescribed standard of mineral oil in relation to hard-boiled sugar confectionery by a notification which came into force during pendency of appeal against conviction was not allowed to the accused.61

It is open to the Legislature to make a provision in the law amending 2nd mollifying existing penal law that the amending Act will apply in cases pending trial but will not apply to cases pending in appeal. By Section 4(1) of the Narcotics Drugs and Psychotropic Substance (Amendment) Act, 2001 which rationalized the sentencing structured providing graded sentences linked to the quantity of Narcotic Drug, made the amended provisions applicable to cases pending before the court under investigation but excluded the application of the Act to cases pending in appeal. This provision was held to be valid.62

The procedure prescribed for trial of offence in a new Act may be ap¬plied for trial of similar offences under a repealed Act. Thus sanction for prosecution granted under the provisions of the new Act will be good for prosecution of an offence requiring sanction under the repealed Act, for sanction pertains to procedure. But the question whether a law which does not affect the punishment but applies a procedure, which is prejudi-cial to the accused by curtailing his procedural right, can be retrospec¬tively applied to offences taking place earlier and is not violative of Article 20 of the Constitution has been referred to a Constitution Bench.63

The enforcement of the Human Rights Act, 1998 in England from 2nd October 2000, section 7 of which enables the victim of an unlawful act by a public authority to rely on the Act in 'proceedings brought by or at the investigation of a public authority whenever the act in question took place' was held not to apply when the person complaining had been convicted before the enforcement of the Act, though his appeal was pending when the Act came into force. But this decision was not unanimous and was later followed with considerable hesitation.63

In Pyare Lai Sharma v. Managing Director, Jammu & Kashmir Indus¬tries Ltd 64 Regulation 16.14 of the Jammu & Kashmir Industries Em¬ployees Service Rules which was amended on April 20, 1983 came for consideration. The amendment added certain more grounds for termination of service of an employee and one of the grounds so added was: If he /the employee) remains on unauthorized absence'. In construing the Regulation the Supreme Court held that the period of unauthorized absence prior to the date of amendment could not be taken into consideration for terminating the services of an employee. In so construing the Regula¬tion the court observed: "It is the basic principle of natural justice that no one can be penalized-on the ground of a conduct which was not penal on the day it was'committed."87 This case shows that the rule of construction against retroactivity of penal laws is not restricted to Acts providing for criminal offences but applies also to laws which provide for other penal consequences of a severe nature, e.g., termination of service.

5. CONCLUSION:

All statutes other than those which are merely declaratory or which relate only

to matters of procedure or of evidence are prima facie prospective” 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 the 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. Where the language of statutes is susceptible of both interpretation then prospective interpretation must be preferred which provide for moderate & harmonious position

The right to protection from retrospective criminal law is well recognised throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been made. Fortunately the Indian constitution protects us from ex post facto laws.

Article 20(1) is truly a blessing to all of us. An act done innocently by an individual in the past, which is illegal in the present, the state cannot prosecute the individual as it is against the principle of natural justice because the individual when committing the act couldn’t have reasonably or by any other method come to know that the act would become illegal in the future. Thus criminal laws with retrospective effect are totally absurd, unfair and unjust. Having criminal laws with retrospective effect is against the right to life.

6. BIBLIOGRAPHY:

1. Singh G.P., Principles of Statutory Interpretation, Eleventh Edition 2008, Lexis Nexis Butterworth’s Publication

2. Bhattacharyya T., The Interpretation of Statutes, Fourth Edition 2001, Allahabad Law Agency Publication

3. Sarthi V. P., Interpretation of statutes, Fourth Edition 2005, Eastern Book Company Publication

4. Mathur D.N., Introduction To Interpretation of Statutes, Second Edition 2005Wadhwa publication

5. The Chartered Accountant Magazine on retrospective operation of statues December 2005

Cases for References:

1. AIR (1964) SC 1729 at 1735; (2006) 6 SCC 289-B

2. National Agricultural Cooperative Mar¬keting Federation of India Ltd. v. Union of India, (2003) 5 SCC 23, p. 30: AIR 2003 SC 1329 (Implied judicially recognised limitations for making retrospective legisla¬tion).

3. District Mining Officer v. Tata Iron & Steel Co., AIR 2001 SC 3134, pp. 3140, 3155 : ■".. (2001) 7. SCC 358.

4. State of Tamil Nadu v. Arooran Sugars Ltd., MR 1997 SC 1815: 3997 (1) SCC 326.

5..P. Kannadasan v. State of Tamil Nadu, AIR 1996 SC 256Q : 1996 (5) SCC 670.

. Keshvan v. State of Bombay, AIR 1951 SC 128, p. 130 : 1951 SCR 228;

6. C. Gupta v. Glaxo Smithkline Pharmaceuticals Ltd., (2007) 7 SCC 171 (Broadening of the definition of 'Workman' by amendment in the Industrial Disputes Act, 1947 is not retrospective affect the dismissal of an employee who was not a workman on the date of his dismissal)

7.'A new law ought to regulate what is to follow, not the past'. OSBORN: Concise La ,vii Dictionary,p. 224.

8. K.C. arora v. State of Haryana 1976 2SCC 917

9. Shyam Sunder v. Ram Kumar. AIR 2001 SC 2472, pp. 2481, 2482 : (2001) 8 SCC 24; Co-operative Company Ltd. v. Commissioner of Trade Tax U.P., (2007) 4 SCC 480 (para 29) ; (2007) 6 JT 49 ; (2007) 5 SLT 400

10.The doctrine of fairness in the context of retrospectivity was also referred to by Sinha J. in Vijav v. State of Ma¬harashtra, (2006) 6 SCC 289 : (2006) 7 JT 112

11. Mithilesh Kumari v. Prem Bihari Khare, AIR 1989 SC 1247, p. 1254 : 1989 (2) SCC 95; Zile Singh v. State of Haryana, (2004) 8 SCC 1, p. 9 : AIR 2004 SC 32 36. 12.

12. Dilip v. Mohd. Azizul Haq, AIR 2000 SC 1976, p-(2000) 3 SCC 607.

13. AIR 2000 SC 3654, p. 3660: (2000) 5 SCC 694 (The passage in the text from this book is quoted from 7th edition p. 369).

14. Birmingham City Council v. Walker, (2007) 3 All ER 445, p. 449 (para 11) (HL).

15 .Gardner & Co. v. Cone, (1928) All ER Rep 458, p. 461

17. Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209, p. 219: (1990) 1 SCC 443

18. Shyam Sunder v. Ram Kumar, AIR 2001 SC 2472, p. 2482 : (2001) 8 SCC 24

19. New India Insurance Co. Ltd. v. Shanti Misra (Smt.), AIR 1976 SC 237 : (1975) 2 SCC 840

20. B. Narhari Shivram Shet Narvekar v. Pannalal Umediram, AIR 1977 SC 164 : (1976) 3 SCC 203.

21. Kuwait Minister of Public v. Sir Frederick Snow & Partners, (1984) 1 Ml ER 73 p. 737 (HL).

22. Employees' State Insurance Corporation v. Dwarka Nath Bhargawa, AIR '" 3518, p. 3519 : 1997 (7) SCC 131.

22. Dilip v, Mohd. Azizul Haq., AIR 2000 SC 1976, pp. 1979, 1980 : (2000) 3 SCC

23. Singh G.P. Priciples of interpretation 11th edition 2008page no. 499

24. Maxwell v. Murphy, (1957) 96 CLR 261, p. 26725. (1991) 2 All ER 712 : (1992) 4

26. (1994) 5 SCC 593. V' H994) 1 All ER 20, p. 30 : (1994) 1 AC 486 (HL).

27. (1994)3 All ER 323: (1995) 1 AC 249 : (1994) 3 WLR 317 (HL).

28 (2006) 6 SCC 289 : (2006) 7 JT 112

29. P. Ganeshwar Rao v. State ofAndhra Pradesh, AIR 1988 SC 2068, p. 2092 : 1988 Supp SCC 740

30. Slate of Bombay v. Vishnu Ram Chandra, AIR 1961 SC 307, p. 310

31.Anand Cajpati Raju v. P. V.G. Raju, JT 2000 (4) SC 590. p. 593 : (2000) 4 SCC 5W-AIR 2000 SC 1886 (Construing the words 'judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement' in section 8( of the Arbitration Act 1996, it was held that an arbitration agreement need not be existence when the action is brought and they will also cover a case where (The arbitration agreement comes into existence after the action is brought).

32. (1995) 213 ITR 340 (SC) ; (1989) 177 ITR 490 (SC)

33. (1994) 210 ITR 886 (SC)

34. (1969) 72 ITR 595 (SC)

35. (1976) SC 237

36. (1979) 120 ITR 921 (SC)

37. (1966) 60 ITR 262 (SC)

38. (1979) 119 ITR 830 (Mad).

39. (1969) 72 ITR 595(SC).

40.(1989) 179 ITR 317 (SC)

41. AIR (1994) SC 1

42. AIR (2000) SC 3654 at 3660

44. Bhattacharyya T., The Interpretation of Statutes , Fourth Edition 2001page no

45. (2003) 354 ITR 773 (SC)

46. (2003) 261 ITR 721 (Kerala)

47. (2000) 243 ITR 56

48. (1997) SC 1361

49. AIR (1997) SC 2523 at 2538, 226 ITR 625 (SC)

50.AIR(1961)SC1425;50AIR(1968)SC1336

51. AIR (1956) SC77at84;AIR(1960)SC655at657

52. AIR (1999) SC 3450

53. Som Devrajbhai Babubhai v. State of Gu¬jarat, AIR 1991 SC 2173 : (1991) 4 SCC 298 (Section 304B of the Penal Code pro-vides a new offence of Dowry death and is not retrospective); Kalpnath Rat v. State. AIR 1998 SC 201, p. 210 : (1997) 8 SCC 733 (All the ingredients of the offence must happen after the new offence comes into force. Case relating to section 3(5) of TADA).

54. (Any provision which increases the penalty par¬ticularly if coupled with an additional liability to imprisonment cannot be construed retrospective). The rule against retrospectivity of penal statutes may also apply to "any taw that alters the legal rules of evidence, thus accepting less or different testi¬mony than the law required at the time of the commission of the offence, in order to convict the offender"

55. State of Haryana v. Ram Diya, AIR 1990 SC 1336, pp. 1338, 1339 : 1990 (2) SCO 701

56. (2004) 4 All ER 1 (HL)

57. AIR 1965 SC 444, p. 446

58. AIR 1999 SC 3450: (1999) 9 SCC 312.

59. Ibid.

60. P.P. Fathima v, State of Kerala, (2003) 8 SCC 726 : (2003) 8 JT 527

61. Dayal Singh v. State of Rajasthan, (2004) 5 SCC 721 : AIR 2004 SC 2608.

62. Pralap Singh v. Stare of Jharkhand, (2005) 3 SCC 551, (para 32), p. 587-89 [Juvenile Justice (care and Protection of Children) Act, 2000 which repealed Juvenile Justice Act, 1986, in section 20 gives benefit of the newin pending cases to those who were Juvenile under the new Act when the new came into force though they may have ceased to be juvenile under the old Act-was held to be consistent with Article 20 of the constitution63.

63. R v. Lambert, (2001) 3 All ER.577 (HL).;R v. Kansai (No. 2), (2002) 1 All ER 257 (HL)

64. AIR 1989SC 1854: (1989)3 SCC 448.

CORPORATE LAWS UPDATES

Wednesday, August 18, 2010

SUPREME COURT RULES THAT THERE IS A PRESUMPTION OF MARRIAGE BETWEEN THOSE WHO ARE IN LIVE-IN RELATIONSHIP FOR A LONG TIME:

CAPITAL EXPENDITURE INVESTMENT BY CORPORATE INDIA LIKELY TO OVERSHOOT LAST YEAR’S LEVEL OF Rs. 3, 44,633 CRORE:

RETROSPECTIVE OPERATION OF STATUTES WITH SPECIAL REFERENCE TO PENAL STATUTES