RETROSPECTIVE OPERATION OF LAW

[Vol 2/ Issue 1/ May 2016] [ISSN 2394-9295]

Niharica Khanna

BBA.LL.B (H)

6^th Semester

Amity Law School, Noida (U.P)

Email ID: niharica.khanna13@gmail.com

ABSTRACT

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

Key Words: Retrospective, ex-post facto law, criminal liability, application

INTRODUCTION

Retrospective generally means to take a look back at events that already have taken place.[1] The term is used in situations where the law (statutory, civil, or regulatory) is changed, altered or reinterpreted, affecting acts committed before the alteration. When such changes make a previously committed lawful act unlawful in a retroactive manner, and are known as an ex post facto law or retroactive law[2].

Retrospective operation of law therefore means application of law to facts or actions which exist even prior to the date the said law is promulgated. It takes into its ambit activities existing prior to the date of the new law and thus operates from a date earlier than the date they come into effect.[3]

APPLICATION OF RETROSPECTIVETY

In most legal systems, retrospective laws which punish the accused for acts, that were lawful when committed, are rare and not permissible. More commonly, changes retroactively worsen the legal consequences (or status) of actions that were committed, or relationships that existed, by bringing it into a more severe category than it was in when it was committed; by changing the punishment or recompense prescribed, as by adding new penalties, extending sentences, or increasing fines and damages payable; or it may alter the rules of evidence in order to make exoneration more difficult than it would have been. On the other hand, retrospective laws which deal with amnesty may decriminalize certain acts and grant pardon by

reducing punishments or change possible consequences for unlawful acts retroactively by repealing previous laws and making it no longer applicable to situations to which it previously was, even if such situations arose before the law was repealed.

A Law does not become retrospective, only because a part of the requisite for its action is drawn from a time antecedent to its passing. In some cases where a new offence is created or a penalty is increased, the legislature is not prevented from enacting an ex post facto law, but if any such law takes or impairs any vested right acquired under an existing law or creates a new obligation, imposes a new duty or attaches a new disability in respect to the transactions on considerations already past, such laws must in express terms state that it is to be applicable retrospectively and the necessary implication of such retrospectively shall be borne out from the language employed by the Legislature.

EX-POST FACTO LAW

The term Ex-Post Facto, retroactive and retrospective are synonyms in judicial use and such terms makes the law look backs on acts which have already taken place. It changes the legal consequences of past events as if the law had been different when the event took place and imposes retrospectively upon acts already done or increase penalties. In relation to criminal law, it may criminalize actions that were legal when committed or it may aggravate the crime by bringing it into a more severe category than it was before or it may increase the punishment of a crime by adding new penalties or extending the terms or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed.Ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most jurisdiction do not permit retrospective legislation to come into force, though some have suggested that judge -made law is retrospective as a new precedent applies to events that occurred prior to the judicial decision.The principle of prohibiting the continued application of these kinds of laws is also known as nullumcrimen, nullapoena sine praevialegepoenali, which means that there exists no crime and no punishment without a pre -existing penal law. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.[4]

CRIMINAL APPLICABILTY

Mostly applicability of Ex-post facto laws to criminal liability is frowned upon. A canon of interpretation of penal provisions does not permit penal provisions to have retrospective effect of law. A penal character in certain offences makes certain offences punishable as offences for the first time, usually no case is maintainable under such a circumstance as respect to acts done before the commencement of such an act. To punish a person for his act which was not an offence at the time of committing the act, a subsequent legislation which came into

operation after the commission of the act will per se be unconscionable besides amounting to negation of fair play and justice.

The Apex Court in Vijay vs. State of Maharashtra[5] held that penal statues which creates new offences are always prospective, but penal statues which create new disabilities, though ordinarily prospectively are interpreted to be retrospective in nature where there is a clear intendment that they are to be applied to past events.

VALIDITY OF RETROSPECTIVE LAW

The Constitution of India does not permit retrospective operation of an act or law, unless there is a necessary implication in law stating that the law is retrospective in nature. A law which is held retrospective but it is not specifically implied in the act would be held to be invalid or unconstitutional. Article 20 (1) of the Indian Constitution provides for protection against retrospective operation of law commonly known as ex post facto law which changes the legal consequences of actions committed before the enactment of the law. The Supreme Court has pronounced many judgment in respect of retrospective operation of laws. In Hitendra Vishnu Thakur vs. State of Maharashtra[6] , the Court laid down the ambit and scope of an amending Act and its retrospective operation The Court held that a statue which affects substantive right is presumed to be prospective in operation unless expressly made retrospective. A procedural law should not be allowed to operate retrospectively and a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication.

A Constitutional Bench of the Honble Supreme Court in Income Tax Commissioner vs. Vatika Township Private Ltd.[7]held that a legislation cannot be presumed to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow‘s backward adjustment of it. The Constitutional Bench set out the general principles concerning retrospectively and concluded that of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The Court held that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit[8] i.e. law looks forward not backward. A retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. The obvious basis of the principle against retrospectively is the principle of fairness‘, which must be the basis of every legal rule. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. The Hon‘ble Court held that the rule against a retrospective construction is different. If a legislation

confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. The doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The presumption against retrospective operation is not applicable to declaratory statutes which remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended[9] CONCLUSION

It is now settled that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospectively and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. To sum up, it is now settled and confirmed by a Constitution Bench of the Hon‘ble Supreme Court, that unless the language of the statute expressly so provides it can only be construed to be prospective in its operation, the only exceptions being in case of declaratory or clarificatory amendments or statutes.

REFERENCES

[1]http://legal -dictionary.thefreedictionary.com/retrospective [2]http://www.thefreedictionary.com/retroactive

[3] Constitution of India by M.P JAIN [4]http://www.legalserviceindia.com/article/l293 -Ex -Post -Facto -Laws -and -Indian -Legal -Scenario.html [5]http://indiankanoon.org/doc/207765/ –1965 SCR (3) 358

[4] (1994)4 SCC 602

[5] (2014) SCC 1

[6] http://legal -dictionary.thefreedictionary.com/Lex prospicit

[7] Constitution of India – M. P Jain