INTRODUCTION:
Retrospective means looking backwards, having reference to a state of things existing before the Act in question came into force. In other words, retrospective law means a law which is made to effect acts, facts, or rights occurring before it came into force. As a point of nuance, it is important to note that a retrospective law only looks backward at things that are past, and it is a retroactive law that acts on things that are past. But, in colloquial parlance, the two terms are usually used synonymously.
GENERAL RULES:
Substantive law vs. Procedural Law.
It is a generic understanding that when a statute deals with procedure, it is presumed to have retrospective effect. This means that if the legislature creates a procedure, any change to that procedure will be presumed to take effect from the date the legislature created the procedure, unless and until there is a very compelling reason why it should not.[1]
On the other hand, if a statute takes away a right which became vested before the date of commencement of the said statute, giving retrospective effect to such a statute is considered to be both unjust and oppressive. However, the legislature has the power to affect substantive rights by enacting laws that have been expressly granted retrospective effect. In such cases, the statute will operate from a date earlier than the date of its commencement and affect rights which would have continued undisturbed if it were not for the statute’s retrospective operation.[2] With this rule in mind, it is important for us to understand exactly what the difference between substantive law and procedural law is. In lay terms, substantive law deals with rights that are enforced, while procedural law delves into the legal processes involving courses of action and various remedies by which the aforesaid rights are enforced.
However, this premise that substantive law determines rights and procedural law deals with remedies has been questioned by jurists. This is because neither the remedies available to a litigant are always borne out of procedural law nor the rights vested in a litigant trace back to a form of substantive law. So, the Supreme Court in Bharat Barrel and Drum Mfg. Co Ltd v The Employees’ Estate Insurance Corporation[3]formulated that the issue to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive rights as well as the remedy. If it is the latter, it falls within the realm of substantive law. Hence, there remains a little distinction between laws that affect procedure and those that affect substantive rights that are vested in a party, if the law itself mandates the court to take away such a right. This can even be a vested right by virtue of a judicial pronouncement.[4
Alteration during the pendency of a legal action
It is well settled that when a substantive law is altered during the pendency of an action, the rights of the parties will be decided according to the law as it stood when the said action commenced. However, the statute can vary such rights mid-way through an initiated action or even post the completion of such action if it is so expressed. So a court’s decision can be neutralised if the condition on which it is based is so fundamentally altered that the decision could not have been given in the altered circumstances.[5]
Similarly, the right to appeal is considered to be a substantive right. Thus, a party will have the said right as per the law that existed on the date on which the legal action was initiated. This right prevails for the rest of the career of the suit unless the right is taken away by a competent statute with retrospective effect.[6]
Furthermore, in cases where an act is repealed and which is followed by a re-enactment, the relevant consideration is not whether the new act expressly keeps the old rights and liabilities alive, but whether it expresses an unequivocal intention to destroy them.[7]
Remedial, Declaratory and Validating statutes.
Where a new statute provides for a remedy where none existed before, such statutes are called remedial statutes. Remedial statutes are always regarded as prospective in their operation.[8]
On the other hand, if a new statute explains an existing statute or supplies meaning to the discrepancies and lacunas as they existed in the former statute, such statutes are called declaratory statutes. Declaratory statutes are usually construed retrospectively, and the assumption against retrospectivity does not hold.[9]
If the legislature enacts a law which is declared to be illegal and unconstitutional by the courts, it becomes imperative for the legislature to remove the defect that rendered the law to be struck down. The new statute which removes these defects is called a validating act and is interpreted retrospectively. This becomes practically essential as it relieves the state of the consequences of acts done prior to the passing of the validating act.[10]
Implied Retrospectivity.
Interestingly, it is not necessary that an express provision to make a statute retrospective be made part of such a statute for it to have retrospective effect. A statute can be deemed to have retrospective effect even by necessary implication. The pertinent question is whether the legislature has expressed such a manifest intent sufficiently and unequivocally.[11]This is especially so when a new law is enacted to cure an existing evil for the benefit of the community as a whole. To decide whether the legislature has sufficiently made its intention clear to give the impugned statute retrospective effect, four factors are suggested as relevant:
(i) the previous state of the law
(ii) the mischief and defects that the previous law did not address.
(iii) What did the legislature consider in terms of the proposed remedy?
(iv) the new statute’s general scope and purview
Once this determination is made, the court will always give such construction to the statute that will suppress the previously existing mischief and advance the remedy sought to be promulgated by the legislature.[12]
In Rex v. Birthwhistle[13] Lord Coleridge, C.J. held that the English statute of Married Women (Maintenance in Case of Desertion) Act, 1886, was retrospective in effect, though the statute itself did not have express words stating so. The learned judge observed that the act was intended to cure an existing evil and to afford married women a remedy for desertion, whether such desertion took place before the passing of the Act or not.
Such retrospectivity will have its effect even on proceedings which are pending on the date on which the said retrospective statute comes into effect. There need not be express words in the amending statute to give such effect. So, for example, if any saving is to be implied by the court in favour of the pending proceedings and if by doing so the amending statute will be rendered nugatory, then the said statute will be construed to have an effect even on pending proceedings.[14]
CONCLUSION:
Except for the few exceptions as stated above, if a statute is so expressed that it can be interpreted both prospectively and retrospectively, it ought to be construed as prospective, especially when it deals with substantive rights.[15] Thus, a statute is read retrospectively only if compelled by necessity, and no other interpretation can be given without doing violence to the language of the statute.[16] However, once it is concluded that a statute must be given retrospective operation, a legal fiction is created. This fiction must be carried to its logical extent and all the consequences and incidents must be worked out as if the law has always been as per the new statute.[17]
Author(s) Name: Sujit Nair (Kishinchand Chellaram Law College ,Mumbai)
References:
[1] K. Kapen Chako v. Provident Investment Co. Pvt. Ltd. 1977, 1 SCC 593.
[2] The Ahmedabad Mfg. & Calico Printing Co Ltd v. S.C. Mehta and Ors. 1963, AIR 1436.
[3]Supreme Court in Bharat Barrel and Drum Mfg. Co Ltd v The Employees’ Estate Insurance Corporation 1971, 2 SCC 860.
[4] Dayawati and Ors v. Inderjit and Ors. 1966, AIR 1423.
[5] Katikara Chintamani Dora v. Guntreddi Annamnaidu 1974, 1 SCC 567.
[6] Jose Da Costa v. Bascora Sadasiva Sinai 1976, 2 SCC 917.
[7] Mohd. Rashid Ahmad v. State of U.P. 1979, 1 SCC 596.
[8] Sukhram Singh & Anr. v. Harbheji 1969, 1 SCC 609.
[9] Chettiam Veettil Amma v. Taluk Land Board 1980, 1 SCC 499.
[10] D.Cawasji & Co. v. State of Mysore 1984, SUPP SCC 490.
[11] Sukhram Singh & Ors. v. Harbheji 1969, 1 SCC 609.
[12] Zile Singh v. State of Haryana and Ors. 2004, AIR 5100.
[13] Rex v. Birthwhistle 1889, 58 L.J. (N.S.) M.C. 158.
[14] Shyabuddinsab Mohidinsab Akki v.The Gadag-betgeri Municipal Borough and Ors. 1955, AIR 314.
[15] Govind Das v. ITO 1976, 1 SCC 906.
[16] State of Kerala v. Philomina 1976, 4 SCC 314.
[17] Sunderdas v. Ram Prakash 1977, 2 SCC 662.
