Retrospective Application

of Substantive Rights
and Procedure
SUMANTH KUMAR
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 recognised restrictions, can
legislate prospectively as well as retrospectively.
Legislative 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 on that date or in
future.
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.
The power to make retrospective laws has 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 judgements of competent courts declaring the invalidity.

Case Law: In P Kannadasan v. State of Tamil Nadu, AIR 1996 SC 2560, the Supreme Court made
the following observation:
“If a State Legislature passes an Act on a subject which falls outside its competence and within
the competence of Parliament and is for that reason held invalid, Parliament can, by passing a
retrospective Act which incorporates the State Act, cure the invalidity.”
Statutes Dealing with Substantive Rights
It is a cardinal principle of construction that every statute is prima facie prospective unless it is
expressly or by necessary implication made to have retrospective operation.
The above principle is based on the maxim “nova constitution futuris formam imponere debet
non praeteritis”, i.e., “A new law ought to regulate what is to follow, not the past”.
This principle operates unless shown to the contrary by express provision in the statute or is
otherwise discernible by necessary implication.
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.
Landmark Case Law: In Burke v. Nutt, (1894) 1 QB 725, Lopes, LJ, made the following observation:
“Every statute, it has been said, 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.”

Case Law: In Delhi Cloth Mills & General Co Ltd v. CIT, Delhi, AIR 1927 PC 242, Lord Blanesburg
made the following observation:
“Provisions which touch a right in existence at the passing of the statute are not be applied
retrospectively in the absence of express enactment or necessary intendment.”

Case Law: In Jose De Costa v. Bascora Sadasiva Sinai Narcornim, AIR 1975 SC 1843, the Supreme
Court quoted the above observation with approval.
There is a subordinate rule to the general rule that retrospective operation is not taken to be
intended unless the intention is manifested by express words or necessary implication.
The subordinate rule is 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.
Close attention must be paid to the language of a statutory provision for determining the scope of
the retrospectivity intended by Parliament.

Case Law: In UOI v. Filip Tiago De Gama, AIR 1990 SC 981, the Supreme Court made the following
observation:
“If the literal 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.”
Important: The inhibition against retrospective construction is not a rigid rule and must vary
secundum materium (according to the subject matter).
The rule against retrospective construction is not applicable to a statute merely because a part of
the requisites for its actions is drawn from a time antecedent to its passing.
If the above situation were 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.

Case Law: In Bishun Narain Mitra v. State of Uttar Pradesh, AIR 1965 SC 1567, the Supreme Court
made the following observation:
“An Amending Act is not retrospective merely because it applies also to those to whom the pre-
amended Act was applicable if the amended Act has operation from the date of its amendment and
not from an anterior date.”
Important: The above observation does not mean that a statute which takes away or impairs any
vested right acquired under existing laws or which creates a new obligation or imposes a new
burden in respect of past transactions will not be treated as retrospective.
Case Law: In Birmingham City Council v. Walker, (2007) 3 All ER 445, the House of Lords made the
following observation:
“One does not expect rights conferred by the statute to be destroyed by events which took place
before it was passed.”

Important: The word “retrospective” has been used in different senses causing a certain amount of
confusion. The real issue in each case is as to the scope of a particular enactment having regard to
its language and the object discernible from the statute read as a whole.
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.

Landmark Case Law: In Blyth v. Blyth, (1966) 1 All ER 524, Lord Denning made the following
observation:
“The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes
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.”
If the new Act affects matters of procedure only, then, prima facie, it applies to all actions
pending as well as future.

Case Law: In Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915, the Supreme Court
quoted the following passage from Interpretation of Statutes by Maxwell with approval:
“No person has a vested right in any course of procedure. He has only the right of prosecution or
defence 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 right than
to proceed according to the altered mode.”
Presumptions regarding the retrospective applicability of procedural laws:
1) Law relating to forum and limitation is procedural in nature, whereas law relating to right
of action and right of appeal even though remedial is substantive in nature.
2) A procedural statute should not, generally speaking, be applied retrospectively where the
result would be to create new disabilities or obligations or to impose new duties in respect
of transactions already accomplished.
3) A statute which not only changes the procedure but also creates new rights and obligations
shall be construed to be prospective, unless otherwise provided either expressly or by
necessary implication.
4) A change of forum except in pending proceedings 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.