Retrospective operations of statutes

Retrospective Operation is generally not given to such statutes as would lay new duties or attach new disabilities in respect or transactions already past or would interfere with vested rights or in which legality or past transactions would be involved.when a substantive law is changed during the pendency of a case in a court of law,The court gives a decision generally on the basisor the law which existed at the time of commencement of the case.The case may,however,be decided on the basis of the amended law if the statue unambiguously intends a change in the earlier intention of legislature.

Another situation where a case may be decided on the basis of the law as it exists on the date of the decision is when the amending law clearly intends a change in the rights of the parties during the pendency of a case even though the amended law is silent about pending cases.Statutes dealing with the procedural aspects of law or practice or courts have no presumption against retrospective operation.In other words,procedural law and the practice or courts may be given a restrospective operation.The basis of this principal is that there is no involment of procedural matters in a vested right and it does not matter at all if an amended procedure replaces the old procedures.The rights will not change by changing the procedure and  accordingly restrospective operation is permissible in matters or procedural law.the position in cases of procedure is,therefore,just the opposite or the operation or substantive law.Alterations in the form of procedurfe are always retrospective unless there is some good reason or other why they should not be.Statutes affecting costs are of a procedural nature for the purposes of the rules about restrospectivity.

Restrospective operation may be given to declaratory Acts and the argument that vested rights are not to be distrubted does not  t to such acts.A declaratory Act is an Act to remove doubts as to the meaning or effect or a Statute, and it is also stated that the unusual reason for passing a declaratory Act is to set aside what the parliament deems to have been a judicial error. The principal that ordinarily statutes will not be retrospectively  operated is only a presumption and as such is rebuttable when very strong evidence to the contrary is available .The evidence may be in the form or explicit language or very strong sufficient circumstances.

A natural corollary of the general principal against retrospective operation is that a statute should not be interpreted in such a manner as to have a greater retrospective operation than is clearly deducible from the terms of the statute .Simlarly, if there are two possible constructions of a statute, one giving it a prospective and the other a retrospective operation, the court shall interpret it prospectively.

The expression ex post facto should not be confused with retrospective operation. there may be four kinds of ex post facto laws.

  1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
  2. Every law that aggravates a crime, or makes it greater than it was , when committed.
  3. Every law that changes the punishment and inflicts greater punishment, than the law annexed to the crime, when committed.
  4. Every law that alters the legal rules or evidence ,and receives less or different testimony, that required at the time of the commission of the offence, in order to convict the offender

Every ex post facto law must necessarily be retrospective but every retrospective law  is not an ex post facto law.

In Ganpat Rai v. chamber of commerce, an order of payment against the appellant was made by the Liquidation Judge and his request for a  certificate for leave to appeal was turned down. On appeal, it was held by a division Bench of the High Court that an appeal did not lie. The Supreme Court held that since a right of appeal under the Patiala State Judicature Firman, 1999 (Samwat) from an order of a single judge to a Division Bench vested in a person, it could not be taken over by subsequently changing the law unless the subsequent statue clearly provides either expressly or impliedly that it would have retrospective operation.

Reference:

  1. The Interpretation of Statutes – Prof.T.Bhattacharya – Central Law Agency
  2. http://www.mondaq.com

Aishwarya Says:

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IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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