Retrospective Effect

Prospective &
Retrospective nature of
Statute & Maxims from
Module 4
O Rule of Law- Prospective application of Statute
O Retrospective operation is an inaccurate term and
opens to various interpretations. The best
instances of retrospective laws are those laws in
which the date of commencement is earlier than
enactment or which validate some invalid laws.
O Nova Constitutio futuris formam imponere debet,
non praeteritis: means every new enactment
should affect the future and not the past.
O The presumption is against retrospective effect
being given to a statute. & therefore where two
interpretations are possible, the court should
avoid the construction that produces retrospective
effect.
O Retrospective means looking backwards; having
reference to a state of things existing before the act in
question.
O A statute that take away the vested rights
retrospectively is considered as the bad & unjust.
O In case of Mithilesh Kumari v. Prem Behari Khare,
1989 it was held that every law that takes away or
impairs vested rights retrospectively is generally unjust
and oppressive.
O The presumption against retrospective law is strong, in
cases where law affect the rights, or legality of the past
transactions; or impair contracts or impose new duty or
attach new disability in respect of the past transactions
or consideration already passed.
O Municipal Council of Sydney v. Margaret
Alexandra Troy, the appellant acquire the piece
of the land on 6th June 1924. The rate of
interest payable on compensation then was
4%. On 17th sept. 1926 the same was
increased to 6%. On the question of the
applicability of new rate- it was held that the
amendment does not give rise to any question
of retrospective operation. On 17th sept. 1924,
the new standard rate of interest was declared,
which is applicable to all land acquired. But
court said the application of the same is
subsequent.
O Delhi Cloth & Gen. Mills Co. Ltd v. CIT, the
High Court gave its decision is an income tax
matter under section 66 of the Income Tax
Act 1922, in Jan. 1926. On 1st April 1926,
sect. 66A was added to the Act, giving right
to appeal to the Privy Council. On the
question whether the new section destroy
the finality of the earlier order..
O Privy council observed: that principles that one must
apply in this situation has been authoritatively
enunciated by the Board in Colonial Sugar Refining Co.
Ltd. v. Irving, where it is in effect laid down that while
provisions of a statute dealing merely with matters of
procedure may properly, unless that construction be
textually inadmissible, have retrospectively effect
attributed to them, provisions which touch a right in
existence at the passing of a statute are not applied
retrospectively in absence of the provisions mentioned
expressly.. Their Lordship have no doubt that if the new
procedure allowed to apply.. It will affect the rights
attached/connected to the same…..therefore it was
concluded that Petitioner have no statutory right to
appeal.
O Indira Sohanlal v. Custodian of Evacuee Property,
the appellant arranged for an exchange of
properties left by her in Pakistan for properties left
by a Pakistani in India. She applied for confirmation
of the transaction under the East Punjab Evacuees
(Adm. Of Property) Act, 1947, but no order were
passed. Under the Act, order passed by the
Custodian were final. Meanwhile the Act was
repealed by the Adm. of Evacuee Property Act, 1950
and under section 50 of the new Act, power of
revision to Custodian General was provided.
O In 1952, Custodian confirmed the appellants
transaction, but the Custodian General set asided
the same….appellant approached the SC…
O Bharat Barrel & Drum Mgf. Co. Ltd. V. ESI Corp.
again question of ‘procedure’.. Substantive Law and
Procedural Law..
O But jurisprudentially speaking procedure – remedial
in nature – and affect the substantive rights..
O O W Holmes observed that in the common law,
whenever we take a leading doctrine of substantive
law far enough back, we are likely to find some
forgotten circumstances of procedure at its source.
It therefore doesn’t appeared that substantive law
determines the rights and procedural law deals with
the procedure nor any right….
O Therefore one should be careful while interpreting
the procedural aspect of rights.
O Does this principle is Universal Truth..
O Is it same for all law including penal, welfare, civil,
common, private, Public?
O the origin of the principle is Equity!
O Reply towards common Law..
O Within Principles of Natural Justice
O That it is illogical and Harsh to apply a new law to

the earlier transaction…
O But is it really Universal???
O Nuremburg Trial : case 1; case 2
O Debate- Hart & Fuller

O Conclusion
O Ex Post Facto Law- law that affect transaction after its
happening- therefore generally all constitutions of the
world e.g. Indian Constitution, Art. 20(1); Irish
Constitution- Article 15.5; Japanese Constitution Art.
39; German Constitution; UK – doctrine of
Parliamentary Sovereignty- Act of 1793
O ECHR- Article 7; UDHR- Art. 11, para 2
O Calder v. Bull, 1798- US – J. Chase- defined 4 types ..
O A Verbis Legis non est recedendum: means you must
not vary the words of the Statute while Interpreting it.
O The object (as we discussed every where) is to
determine the intention of Legislature.
O The departure from the plain meaning of the law is
considered bad in Law, and hence need to be avoided.
O Objective/Purpose of the Maxim:
O Purpose is derived from the simple objective of the
subject- interpretation itself.. to giving meaning to –in
order to bring stability in the law and its application–
required to justify the legislation to meet its objectives.
O E.g. Wills Act- requirement – testimony of the will by at
least 2 witnesses- in a case where it is only testified by
1 witness--- ?
O Hardeep Singh v. State of Punjab & Ors. 2014-
.. redundant, should be avoided as the
presumption is that the legislature has
deliberately and consciously used the words for
carrying out the purpose of the act. the legal
maxim “a verbis legis non est recedendum".
which means, ".from the words of law, there
must be no departure” has to be kept in mind.
O The court cannot proceed with an assumption
that the legislature enacting…as equivalent to
relevant provisions of the law.
O Non-ostante clause: except as otherwise
expressly provided by this code or by any law
for the time being in force....
- punishment
O But does change is time and condition affect it: e.g.
under evidence law- section 3- means oral or
documentary…
O So when technology- electronic evidence- amended the
Evidence Law
O Above all: Principle of Natural Justice always prevail…
O In a case where a old leady –renewal of welfare
scheme– requirement under policy….
O Shri Lunawat Jayant Maniklal v. Dy. CIT, 2007,
…premises has been raided, for identifying the
undisclosed income.. It is stated that the said law is to
be interpreted under the guidance of this maxim.. As it is
the principle under Literal rule of Interpretation.
O NDPS Act- Criminal statute –
O Offences- penalty- Quantity; e.g. Cocaine; 2grm
(Small) ; 100 grm (Commercial Quantity);
Methamphetamine 2gm & 50 grm- punishment
accordingly
O Tests- of substance
O Rohitah Kumar and ors. V. Om Prakash
Sharma-
O Accessorium Non Ducit Sed Sequitur Suum
Principale: Accessory do not draw, but follow
its principle-
O Principle Rule is the guiding criteria for
accessory; and for that matter accessory do
not have their existence independent of the
Principle.
O Ab Abusu Ad Usum Non Valet Consequentia: A
Consequence from an abuse to a use is not valid.
O A conclusion about the use of a thing from its abuse
is not valid.
O In other words if a 2 propositions are reading
together leads to a such conclusion – it does not
make the proposition itself invalid.
O Reddendo Singula Singulis- means referring each to
each; referring each phrase or expression to its
corresponding object.
O When a list of words has a modifying phrase at the
end, the phrase refer only to the last.
O It is the rule of construction used usually in
distributing the Property.
O Where there is a general words of description,
following a record of particular things, such
general words are to be construed distributably,
and if the general words will to apply to some
things and not to others, the general words to be
applied to those things and not otherwise.
O E.g. Wharton’s Law Lexicon- if anyone shall draw
or load any sword or gun, the word draw is applied
to sword only and the word load to the gun only,
the former verb to former noun and latter to latter,
because it is impossible to load a sword or to
draw a gun, and so of other application of
different sets of words to one another.
O Ab inconvenienti : from inconvenience or
hardship – used to refer to the rule in law
that an argument from inconvenience is a
strong argument
Syllabus Exams
O Module 1: Principles of Legislation
O Legislation; principles; types; classification;
O Repeal & revival; amendment; consolidating;
codifying
O Retrospective-Prospective
O Module 4: Maxims

Retrospective Effect

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Prospective &

O That it is illogical and Harsh to apply a new law to

O Debate- Hart & Fuller

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