OPERATION OF STATUTES

By | March 27, 2017
rules statutes

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Introduction

Statutes are either prospective or both prospective and retrospective from the point of its applicability i.e. the period of legal effect of statutes. All statutes in general have only prospective effect. It means applicability to future transactions. But certain statutes have to be sometimes both prospective and retrospective. “Retrospective” means the statute would apply and affect past transaction also.

Commencement

The term “commencement” is used with reference to an Act, the day on which the Act comes into force. If not provided, a Central Act comes into force on the day it receives Presidential assent.

Retrospective

Retrospective statute contemplates the past and gives effect to previous transactions. There must be words in a statute sufficient to show that the intention of the legislature is to give the rule or the law the Retrospective effect.

Relevant considerations relating to Operation

General Statute

Every statute is prima facie prospective, unless it is expressed or implied. If the object of the statute is to affect vested rights or to impose mew burdens or to impair existing obligations, then there must be words in the statute sufficient to show the intention of the legislature. A statute can be given retrospective effect, only if the statute so directs either expressly or by necessary implications. It is a fundamental rule of the law that no statute shall be construed to have retrospective operation unless such construction appears very clearly in terms of the Act, or arises by necessary or distinct implication. Conditions for giving retrospective effect Minute attention must be given to the language of the statutory provision for determining the scope of the retrospection as intended by the Parliament. The language used in a statute is the most important factor to be considered.

Amending statute

An amendment of a substantive law is not retrospective unless laid down or necessarily implied. A vested right cannot be taken away by amending Act except by express language or by necessary intendment.

Declaratory statute

A declaratory Act is defined as an Act to remove doubts existing as to the common law, or the meaning or the effect of any statute. The usual reason for the passing a declaratory act is to set aside what Parliament has considered a judicial error, whether in the statement of the common law or the interpretation of the statute. The presumption against retrospective operation is not applicable to the declaratory statutes. A declaratory act is an act to remove doubts existing to common law and thus declaratory acts are usually held retrospective.

Pending Actions In the pending suits or actions, the law is that the rights of the parties are decided as per the law as it existed when the action was commenced. If however the Act provides the retrospective operation of a statute, it would be construed accordingly even though the consequences are unjust and hard. In Smith v. National Association of Operative Plasterers. S4 of the trade dispute act,1906 enacted that “an action for tort against a trade union shall not be entertained by any court”. It was held not to affect decisions of an action commenced before passing of the act.

Doctrines of prospective overruling Rule in I.C Golaknath v. State of Punjab

The doctrine of prospective overruling is a modern doctrine suitable for a fast moving society. It does not affect the past but restricts its scope for the future. Under this doctrine, the court declares what the law is but does not give retrospectively. It reconciles the two conflicting doctrines, namely, the Court finds law and that it makes a law for the future by bringing about a smooth transition by correcting the errors in the law without disturbing the impact of errors on the past transactions. In other words, the law for the future corrected and the past transaction as per the law, though invalid, are held valid. The doctrine of prospective overruling can be invoked only regarding constitutional matters. It can be applied only by the Supreme Court.

De Facto Acts

The acts performed by the officers de facto within their assumed official authority, provided such acts are performed in the interest of the public or the third party and not for their own benefits, are generally held as valid and binding, as if they were acts of officers de jure.

General Act and Special Act

The general rule is that special Acts prevails over the general act in the case of inconsistency. A general act cannot repeal a special act. A Special Act, though earlier in time, deals with special objects and general law even if enacted later cannot repeal it. Food inspector v. Suivert and Dholakia Pvt. ltd. If there is a general law and a special law relating to a particular subjects, the general law must be so applied as to not to affect the special provision. Only if the intention to abrogate the special law can be spelled out, the general law shall prevail.

Statutes dealing with merely matters of procedure are presumed to be retrospective unless otherwise interrupted. Statutes Regulating Succession Statutes enacted for regulating succession are not applicable to already open succession. Such laws have only prospective effect. It is the same regarding statutes regulating transfers and contracts. Fiscal and Penal Statutes are prospective Statutes regulating appeals and finality of orders are also prospective.

Submitted by – Shradha Arora, CNLU Patna

(Editor @ Legal Bites)

Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.