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RETROSPECTIVE OPERATION OF STATUTES WITH SPECIAL REFERENCE TO

PENAL STATUTES

OPERATION OF
STATUTES

RETROSPECTIV
E

PROSPECTIVE

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

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 restrictions'2 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 3. 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 .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
praeteritis7
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 impairs 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
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.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
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".
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 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.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
procedural
and
apply
to
future
as
well
past
causes
of
action.22
IV. RECENT STATEMENTS OF THE RULE AGAINST RETROSPECTIVITY: The classification 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 application 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 statutes into
substantive and procedural and avoiding use of words like existing 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 contrary intention appears. It is not simply a question of classifying an enactment
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 Parliament 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 question 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 circumstances 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 empowered 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
retrospective
in
nature."28
V. LANGUAGE NOT ALWAYS DECISIVE: In deciding the question of applicability 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 decisive 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 include 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 Legislature 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 wordretroactive 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 33 holding 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 manifestly 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 affects 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 applicable 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 retrospective 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
accused.
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 saving 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 accused and
his sentence of death could be replaced by sentence for life imprisonment. 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
imprisonment. 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
downgrade the offence, it would be a salutory principle for administration of criminal justice to suggest that
the said legislative benevolence can be extended 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 continuance 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 quantity
and commercial quantity of brown sugar and thereby making possession 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 applied 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 retrospectively 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 Industries Ltd 64 Regulation 16.14 of the
Jammu & Kashmir Industries Employees 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 Regulation 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 couldnt 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 Butterworths
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

1.

for

AIR

(1964)

SC

1729

References:

at

1735;

(2006)

SCC

289-B

2. National Agricultural Cooperative Marketing 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 legislation).
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

Keshvan

v.

v.

State

State

of

of

Tamil

Bombay,

Nadu,
AIR

AIR
1951

1996
SC

SC
128,

256Q
p.

130

1996
:

(5)

1951

SCC

670.

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
Maharashtra,
(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)

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
15

.Gardner

17.

Gurbachan

18.

Shyam

City Council
&

Co.

Singh

Sunder

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

v.

v.

Satpal

v. Ram

Cone,
Singh,

(1928)

AIR

Kumar, AIR

All

1990

2001

SC

SC

ER
209,

2472,

p.
p.

Rep

458,

219:

(1990)

2482

(2001)

p.

461

SCC

443

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.
27.
28

(1994)

(1994)3

SCC
All

(2006)

593.
ER

V'
323:

H994)

(1995)
SCC

All
1

ER

20,

AC

p.

249

289

30
:

(1994)

(1994)
(2006)

AC

486

WLR
7

317
JT

(HL).
(HL).
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

39.

(1969)

40.(1989)

AIR

44.

Bhattacharyya

T.,

45.

(2003)

46.

(2003)

47.

The

317

Interpretation

of

354

3654
Statutes

(1997)

Fourth

Edition

2001page

(Kerala)

ITR

56

SC
2523

at

2538,

no
(SC)

721

243

SC

3660

773

ITR

(1997)
AIR

1
at

ITR

261

(SC)

SC

SC

(2000)

48.

595(SC).

(1994)
(2000)

(Mad).

ITR
ITR

AIR

42.

830

72

179

41.

49.

ITR

1361
226

ITR

625

(SC)

50.AIR(1961)SC1425;50AIR(1968)SC1336
51.

AIR

52.

(1956)

AIR

SC77at84;AIR(1960)SC655at657

(1999)

SC

3450

53. Som Devrajbhai Babubhai v. State of Gujarat, 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 particularly 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 testimony 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)

57.

AIR

58.

AIR

1999

All

ER

1965

SC

444,

SC

3450:

(1999)

(HL)

p.
9

SCC

446
312.

59.

Ibid.

60.

P.P.

Fathima

61.

Dayal

Singh

v,
v.

State
State

of
of

Kerala,

(2003)

Rajasthan,

(2004)

SCC
SCC

726
721

:
:

(2003)
AIR

2004

JT
SC

527
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.