Prospective and retrospective operation of statutes

1. Meaning

A statute operates prospectively when it governs only acts, transactions and events occurring after its commencement. It operates retrospectively when it takes away or impairs rights acquired, creates new obligations, imposes new duties or attaches new disabilities in respect of transactions or considerations already past. A law is not retrospective merely because it draws on past facts for a future purpose; for example, a law that from now on disqualifies persons previously convicted operates prospectively, though the fact it relies on is past.

2. The presumption of prospectivity

The rule is expressed in the maxim nova constitutio futuris formam imponere debet non praeteritis: a new law ought to regulate what is to follow, not the past. The reasons are fairness and certainty. People arrange their affairs according to the law as it stands, and it is unjust to change the legal effect of what they have already done. So unless the words of the statute, expressly or by necessary implication, show that it was meant to apply to the past, it is construed as prospective. The presumption is strongest where the statute affects vested rights or imposes penalties.

3. Criminal laws: Article 20(1)

Article 20(1) provides that no person shall be convicted of an offence except for violation of a law in force at the time of the commission of the act charged, nor subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the offence. This is a constitutional bar, not merely a presumption: even express words cannot make a law creating an offence or enhancing punishment retrospective.

• Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 INSC 50, AIR 1953 SC 394. Article 20(1) prohibits conviction or enhanced punishment under an ex post facto law; the question is whether the act was an offence under the law in force when it was done.
• Keshavan Madhava Menon v. State of Bombay, 1951 INSC 3, AIR 1951 SC 128. A prosecution under the Indian Press (Emergency Powers) Act, 1931 for a pamphlet published in 1949 was pending when the Constitution came into force. The Court held that Article 13(1) is prospective: it makes inconsistent laws void only from 26 January 1950, and does not wipe out liabilities already incurred, so the prosecution could continue.

Article 20(1) protects against conviction and heavier punishment; it does not prevent a law that benefits the accused from being applied to him. In Rattan Lal v. State of Punjab, 1964 INSC 116, AIR 1965 SC 444, the Probation of Offenders Act, 1958, which came into force in the area after the offence was committed, was applied to a young offender: a beneficial criminal law may operate retrospectively.

4. Substantive and procedural laws

The main working distinction is between laws that affect substantive rights and those that only regulate procedure. The principles were summarised in Hitendra Vishnu Thakur v. State of Maharashtra, 1994 INSC 237, (1994) 4 SCC 602, in the context of an amendment to the Terrorist and Disruptive Activities (Prevention) Act extending the time for investigation:

• a statute that affects substantive rights is presumed prospective unless made retrospective expressly or by necessary intendment;
• a statute that merely affects procedure is presumed retrospective, unless such a construction is textually impossible;
• every litigant has a vested right in the substantive law, but no one has a vested right in procedure;
• a procedural statute should not ordinarily be applied retrospectively where the result would be to create new disabilities or obligations, or impose new duties, in respect of transactions already completed; and
• a statute that both changes procedure and creates new rights and liabilities is construed as prospective unless otherwise provided.

5. Vested rights, including the right of appeal

The right of appeal is substantive, not procedural. In Garikapati Veeraya v. N. Subbiah Choudhry, 1957 INSC 10, AIR 1957 SC 540, the Court held that the right of appeal vests in a litigant when the suit is instituted, and is governed by the law then in force, not by the law at the date of decision. A later law taking it away or making it more onerous does not apply to pending suits unless it says so expressly or by necessary intendment. The same reasoning protects other accrued rights and liabilities, and section 6 of the General Clauses Act, 1897 preserves them on repeal.

6. Declaratory, validating and taxing statutes

• Declaratory statutes declare what the law always was, to remove doubt or correct a judicial interpretation. They are retrospective by nature. But a statute does not become declaratory merely by being called so. In R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995 INSC 85, (1995) 2 SCC 630, a three-judge Bench held that section 4 of the Benami Transactions (Prohibition) Act, 1988 was not declaratory and did not apply to suits already pending when it came into force, overruling Mithilesh Kumari (1989) on the point.
• Validating statutes cure a defect identified by a court in earlier action. The legislature may validate retrospectively if it removes the cause of invalidity; it cannot simply overrule a judgment by declaring it ineffective.
• Taxing statutes. Parliament may tax retrospectively, but a provision imposing a new liability is presumed prospective, and clarificatory language does not make it retrospective if it in fact imposes a new burden: CIT v. Vatika Township (P) Ltd., 2014 INSC 629, (2015) 1 SCC 1.

7. Prospective operation and the new criminal codes

The Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024. Offences committed before that date remain governed by the Indian Penal Code, both because of Article 20(1) and because of section 6 of the General Clauses Act. On procedure, section 531(2)(a) of the Nagarik Suraksha Sanhita provides that any appeal, application, trial, inquiry or investigation pending immediately before its commencement shall be disposed of, continued, held or made under the Code of Criminal Procedure, 1973 as if the Sanhita had not come into force. This is a clear case of the legislature choosing prospective operation for a procedural law, displacing the usual presumption.

How this is examined

The 10-mark question follows the order in the box above. The 6-mark “prospective operation” note gives the meaning, the maxim, the reasons, the rule that clear words can make a civil statute retrospective, and Article 20(1). If a problem is set, ask first whether the provision is penal (Article 20(1) bars retrospective liability), then whether it is substantive or procedural, then whether the words show a contrary intention.