Judicial law-making traditionally operates both prospectively (like legislation) to affect future transactions and retrospectively (unlike most legislation) to affect past transactions. However, ordinarily, a legislature has the power to make prospective laws, but Article 20 of the Indian Constitution, 1950 provides certain safeguards to the persons accused of a crime. With this backdrop, Article 20(1) of the Indian constitution imposes a limitation on the law-making power of the constitution.
The Constitution explicitly restricts the legislature insofar as retrospective criminal laws are concerned, as opposed to civil liabilities, which have no prohibition pertaining to retrospective application. Thus, something like taxes can be imposed retrospectively.
It restricts the legislature from making any retrospective criminal laws however it doesn’t deny a civil liability retrospectively for example with effect from a past date. Clause (1) of Article 20, therefore of the Indian Constitution, therefore, established the right against ex-post-facto laws.
As per such legal provisions, “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”. A similar stance is observed by the United States constituting provisions for prohibiting ex-post-facto laws.
As provided by popular jurist Sir Edward Coke, a new law ought to be prospective, not retrospective in its operation. Which is essentially a guiding principle during legislation. The dictionary meaning of the word prospective with reference to statutes shows that it is concerned with or applying the laws in the future or at least from the date of commencement of the statute.
On the contrary, revered jurist Holmes J. once said, “Judicial decisions have had a retrospective operation for near a thousand years”.
In the past, the retrospective operation of judicial decisions was part of the myth that the courts and judges merely declared law and did not make it. Even when earlier precedents were overruled, the subsequent judges do not pretend to make a law, but to vindicate the old one from misrepresentation. For if it is found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. This declaratory theory of law was attractive because, as Professor Cross pointed out that it concealed a fact that judge-made law is retrospective in its effect. Bentham brutally stated that ‘it is the judges that make the common law.
Anyhow, the word retrospective when used with reference to enactment generally means:
- Effecting an existing contract or
- The reopening of the past closed and completed transactions, or
- Affecting accrued rights and remedies, or
- Affecting procedure.
The apex court of the country in its constitutional bench judgment in the case of Memon Abdul Karim Haji Tayab vs. Dy. Custodian-General provided that:
“It is well settled that procedural amendments to a law apply in absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the action may have begun earlier or the claim on which the action may be based may be of an anterior date.”
Further, the Hon’ble Supreme Court in Keshavan vs. The State of Bombay held that 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 a retrospective operation.
This principle of law follows from the legal maxim ‘Nova Constitutio Futuris Formam Imponere Debet Non Praeteritis‘, i.e., a new law ought to regulate what is to follow, not the past. The same viewpoint has been taken in Monnet Ispat & Energy Ltd. V. Union of Indian & Ors. wherein the apex court held that such a principle must operate so long as there is no express provision or legislation explicitly providing for the retrospective applicability of the statutes.
Therefore, in conclusion, the elementary rule followed with respect to statutes dealing with the substantive right is that the construction of every statute is prima facie prospective until and unless there is a necessary implication that makes the same have a retrospective effect. With respect to law or amendment related to change of forum, a change of forum except in pending proceedings is a matter of procedure and is applicable retrospectively.
About author –
This article has been authored by Vidhit Verma, 2nd year BBA LLB(Hons.) student at School of Law, Christ University, Bengaluru.
