Central University of South Bihar

SCHOOL OF LAW AND GOVERNANCE

Under the guidance of Mrs. Poonam Kumari

Constitutional law

Project on topic : Doctrine of Plenary

and Retrospective legislative Powers in India.
-------------------------------------------------------------------------------

Name : RISHA RANI

Course : B.A. LL.B. (Hons)
Semester : III
Enrollment No.: CUSB1713125040

pg. 1
 ACKNOWLEDGEMENT

The project work of “CONSTITUTIONAL LAW” on the topic “PLENARY

DOCTRINE AND RETROSPECTIVE LEGISLATION IN INDIA”. This
project is given by our honorable subject professor “Mrs. Poonam Kumari” and
first of all I would like to thank her for providing me such a nice topic and making
me aware as well providing me a lot of ideas regarding the topic and the methods
to complete the project.

I would like to thank all the Library staffs who helped me to find all the desired
books regarding the topic as the whole project revolves around the doctrinal
methodology of research. I would like to thank to my seniors as well as class
mates who helped me in the completion of this project. I would also like to thanks
to Google and Wikipedia as well as other web sites over web which helped me in
the completion of this project. Last but not the least, thanks to all who directly or
indirectly helped me in completing of this project.

I have made this project with great care and tried to put each and every
necessary information regarding the topic. So at the beginning I hope that if once
you will come inside this project you will be surely glad.

-Risha Rani.

pg. 2
 INDEX

S.No Contents Page No.

1 Plenary Power of Legislation 4-6

2 Retrospective Legislation 7-10

3 Constitutional Provisional 10

4 Ancillary and Incidental 10-11

Legislation

5 The Concept Of Ultra Vires 11

6 Conclusion 12

pg. 3
Plenary Power of Legislation1

It is an absolute power to enact laws (even if it is contrary to any understanding or guarantee

is given by the state), subject only to its legislative competence and other constitutional
limitations. No limitation can be read on the ground of legislative practice or legitimate
expectations.

The principle to interpret the entries (in lists) so as to make the legislative power of parliament
and state legislatures ‘plenary’ is that the entries should not be read in a narrow or restricted
sense. Each general word in an entry should be construed to include all ancillary or subsidiary
matters which can fairly and reasonably be said to comprehend it.

The following points are important to understand the nature of plenary power:-

(1) The power to make a law includes the power to give effect to it prospectively (i.e. for
future acts – law to take effect from a future date) as well as retrospectively (i.e. for past acts
– law to take effect from a backdate).

(2) The meaning of a validation act is to remove the causes of ineffectiveness or invalidity of
actions or proceedings which are validated by a legislative measure. A validating law is upheld
first by finding out whether legislature possesses competence over die subject matter/and,
whether by validation the legislature has removed the defects which the courts have found in
the previous law.

(3) where an impugned act (i.e. an act whose validity is questioned) passed by a state legislature
is invalid on the ground that state legislature did not have legislative competence to deal with
the topic covered by it, then even parliament cannot validate such act, because such validation
would give the state legislature power over subjects outside its jurisdiction.

(4) When the legislature cures the said infirmity and passes a validating law, it can make the
said provisions of earlier law effective from the date when it was passed. The retrospective
application of law thereby removing the basis of earlier judicial decision (i.e. a decision based
on earlier law) is not an encroachment on the judicial power. However, the legislature cannot
by bare declaration, without anything more, reverse or override a judicial decision.

In Sajjan Singh vs State Of Rajasthan2, In the Delhi Laws Act case(1) he has undoubtedly
said that Parliament enjoys plenary powers of legislation. That Parliament has plenary powers
of legislation within the circumscribed limits of its legislative power and cannot be regarded as
a delegate of the people c while exercising its legislative powers is a well accepted position.
The fact, however, remains that unlike the British Parliament our Parliament, like every other
organ of the State, can function only within the limits of the powers which the Constitution has

1
https://www.legalbites.in
2
1965 AIR 845, 1965 SCR (1) 933)

pg. 4
conferred upon it. This would also be so when, in the exercise of its legislative power, it makes
an amendment to the Constitution or to any of its provisions.

In Video Electronics Pvt. Ltd. And .vs State Of Punjab & Anr3. It is true that if a particular
provision being taxing provision or otherwise impedes directly or immediately the free flow of
trade within the Union of India then it will be violative of art. 301 of the Constitution. It has
further to be borne in mind that art. 301 enjoins that trade, commerce and intercourse
throughout the territory of India shall be free. The first question, therefore, which one has to
examine in this case is, whether the sales tax provisions (exemption etc.) in these cases directly
and immediately restrict the free flow of trade and commerce within the meaning of art. 301 of
the Constitution. We have examined the scheme of art. 301 of the Constitution read with art.
304 and the observations of this Court in Atiabari's case, as, also the observations made by this
Court in Automobile Transport, Rajasthan's case. In our opinion, Part XIII of the Constitution
cannot be read in isolation. It is part and parcel of a single constitutional instrument envisaging
a federal scheme and containing general scheme confer- ring legislative powers in respect of
the matters relating to list II of the 7th Schedule on the State. It also confers plenary powers on
States to raise revenue for its purposes and does not require that every legislation of the State
must obtain assent of the President. Constitution of India is an organic document.

In the case of L. Chandra Kumar Vs. Union of India and others4, it is submitted on behalf of
the State that in M/s. S.B.P. & Co. (supra) Hon'ble Supreme Court has not decided as to whether
an application is maintainable before High Court under Articles 226 & 227 of
the Constitution of India against an order of arbitral Tribunal passed in a petition filed under
Section 16 of the Act, 1996. A reading of the entire judgment in S.B.P. Co. would make it
abundantly clear that the Hon'ble Supreme Court has not held that a party aggrieved by an order
passed by arbitral Tribunal under Section 16 of the Act, 1996 cannot approach the Hon'ble
High Court under Articles 226 & 227 of the Constitution of India. The Hon'ble Supreme Court
has not laid down that all the orders passed by the arbitral Tribunal u/s. 16 of the Act, 1996
cannot be challenged before the Hon'ble High Court under articles 226 & 227 of
the constitution, but certainly the same order can be challenged before the High Court. This
has been held to be a part of the basis of the judgment of a seven Judge Bench of the Hon'ble
Supreme Court in L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261, wherein it is
held that a basic structure cannot be amended by the Parliament by exercising
its plenary power of amending the Constitution.

In Kanhiya Lal Omar v. R.K Trivedi5, dealt with the constitutional validity of the Election
Symbols (Reservation and Allotment) Order, 1968 which was issued by the Election
Commission in its plenary exercise of power under Article 324 of the Constitution read with
Rules 5 and 10 of the Conduct of Elections Rules, 1961.

3
1990 AIR 820, 1989 SCR Supl. (2) 731
4
AIR 1997 SC 1125
5
1986 AIR 111, 1985 SCR Supl. (3) 1

pg. 5
 In the case of Dr. Indramani Pyarelal Gupta v. W.R Natu6, the Apex Court while noticing
the distinction between the law made by the Legislature and the same made by a Government,
to whom powerwas delegated observed thus: In the case of the Legislature, Art.
246 of the Constitution confers a plenary power of legislation subject to the limitations
mentioned therein and in other provisions of the Constitution in respect of appropriate entries
in the Seventh Schedule. This Court, in Union Of India v. Madan Gopal Kabra7, held that the
Legislature can always legislate retrospectively, unless there is any prohibition under
the Constitution which has created it. But the same rule cannot obviously be applied to the
Central Government exercising delegated legislative power, for the scope of their power is not
co-extensive with that of Parliament.

In Empress vs. Burah,8 the Privy Council held that the Indian legislature had
plenary powers within its own field and therefore has the same power to pass conditional
legislation as the Imperial Parliament itself. But the possession of plenary powers within the
ambit laid down only means that within that particular field it can make any laws on those
subjects. It would not mean that it can shirk its duty by making a law that it shall not operate
on that field but somebody else will operate on its behalf.

In Ex. Capt. K.C. Arora And Another vs State Of Haryana And Others,9 It may be pointed
out at the very outset that the Parliament as also the State Legislature have
plenary powers to legislate within the field of legislation committed to them and subject to
certain constitutional restrictions they can legislate prospectively as well as retrospectively. It
is, however, a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have retrospective effect. But the
rule in general is applicable where the object of the statute is to affect the vested rights or to
impose new burden or to impair existing obligations. Unless there are words in the statute
sufficient to show the intention of the legislature to effect existing rights, it is deemed to be
prospective only. Provisions which touch a right in existence at the passing of the statute are
not to be applied retrospectively in the absence of express enactment or necessary intendment.
The Governor can also exercise the same powers under Art. 309 of the Constitution and there
is not the slightest doubt that the impugned amendment brought in has been made retrospective.
The impugned amendment in the instant case by necessary implication have undoubtedly a
retrospective effect.

6
A.I.R 1963 S.C 274
7
A.I.R 1954 S.C 156
8
(1878) ILR 3 Cal 64
9
1987 AIR 1858, 1984 SCR (3) 623

pg. 6
Retrospective legislation.
"The essential idea of legal system is that current law should govern current activities.
Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the
general body of law to the circumambient air. Clumsy though these images are, they show the
inappropriateness of retrospective laws. If we do something today, we feel that the law applying
to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we
believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States
Constitution and in the Constitution of many American States, which forbid it. The true
principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said
retrospective legislation is 'contrary to the general principle that legislation by which the
conduct of mankind is to be regulated ought, when introduced for the first time, to deal with
future acts, and ought not to change the character of past transaction carried on upon the faith
of the then existing law." 10

[Ordinarily, a legislature has power to make prospective laws, but Art.20 of the Indian
Constitution, 1950 provides certain safeguards to the persons accused of crime and so Art.
20(1) of the Indian constitution imposes a limitation on the law making power of the
constitution. It prohibits the legislature to make retrospective criminal laws however it does
not prohibit a civil liability retrospectively i.e. with effect from a past date. So a tax can be
imposed retrospectively. Clause (1) of the Article 20 of the Indian Constitution guarantees
rights against ex-post facto laws. It provides that “ 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.” The American Constitution also
constitutes a similar provision prohibiting ex-post facto laws both by the Central and State
legislatures.

The word retrospective when used with reference to an enactment may mean:

1. Effecting an existing contract or

2. Reopening of the past , closed and completed transactions, or
3. Affecting accrued rights and remedies, or
4. Affecting procedure.

The retrospective operation of an enactment may mean one thing and its affecting the rights of
parties another. Normally, an enactment is prospective in nature. It does not affect that which
has gone, or completed and closed up already. Ordinarily, the presumption with respect to an
enactment is that, unless there is something in it to show that it means otherwise, it deals with
future contingencies, and does not annul or affect existing rights and liabilities or vested rights,
or obligations already acquired under some provisions of law although its effect is that it does

10
Francis Bennion's Statutory Interpretation, 2nd Edn.

pg. 7
not affect an existing right as well. If an enactment expressly provides that it should be deemed
to have come into effect from a past date, it is retrospective in nature. It then operates to affect
existing rights and obligations, and is construed to take away, impair or curtail, a vested right
which had been acquired under some existing law. If an enactment is intended to be
retrospective in operation, and also in effect, the legislature must expressly, and in clear and
unequivocal language, say so, in the enactment itself. A retrospective operation is not given to
a statute, so as to impair an existing right or obligation, otherwise than as regards matters of
procedure unless that effect cannot be avoided without doing violence to the language of the
enactment. If the enactment is expressed in a language which is capable of either interpretation,
it ought to be construed prospectively.

a retrospective law only looks backward on things that are past and ex-post facto law is a
retroactive law that acts on things that are past, but the terms retroactive and retrospective are
used synonymously. Retrospective law is made to affect acts or facts occurring, or rights
occurring before it came into force. Every statute which takes away or impairs vested rights
acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a
new disability in respect to transactions or considerations already past. Retroactive statute
means a statute which creates a new obligation on transactions or considerations already part
or destroys or impairs vested rights.]11

In Garikapati Veeraya v. N. Subbiah Choudhry12, the SC stated that "The golden rule of
construction is that, in the absence of anything in the enactment to show that it is to have
retrospective operation, it cannot be so construed as to have the effect of altering the law
applicable to a claim in litigation at the time when the Act was passed."

In Ratan Lal Vs.State of Punjab13, a boy of 16 years was convicted for committing an offence
of house-trespass and outraging the modesty of a girl aged 7 years. The magistrate sentenced
him for six months rigorous imprisonment and also imposed fine. After the judgment of
magistrate, the Probation of Offenders Act, 1958 came into force. It provided that a person
below 21 years of age should not ordinarily be sentenced to imprisonment. The Supreme Court
by a majority of 2 to 1 held that the rule of beneficial interpretation required that ex-post facto
could be applied to reduce the punishment. So an ex-post facto law which beneficial to the
accused is not prohibited by clause (1) of Article 20.

In State of M.P. and another, vs.. G.S. Dall & Flour Mills14, The Apex Court in Para 21 of
the judgment the Apex Court has observed that "the notification of 3/71187 amending the 1981
notification with retrospective effect so as to exclude what may be described in brief as
'traditional industries' though, like Rule 14 of the deferment rules, the exclusion extends' even
to certain other non-traditional units operating in certain situations. Though this notification
purports to be retrospective, it cannot be given such effect for a simple reason. We have held
that the 1981 notification clearly envisages no exclusion of any industry which fulfils the terms

11
http://www.legalservicesindia.com/article/517
12
1957 AIR 540, 1957 SCR 488
13
1965 AIR 444, 1964 SCR (7) 676
14
1991 AIR 772, 1990 SCR Supl. (1) 590

pg. 8
of the notification from availing of the exemption granted under it. In view of this
interpretation, the 1987 amendment has the effect of rescinding the exemption granted by the
1981 notification in respect of the industries mentioned by it. S. 12 is clear that, while a
notification under it.”

In Hitendra Vishnu Thakur v. State of Maharashtra15, it was stated that the ambit and scope
of an amending Act and its retrospective operation as follows :

"(i) A statute which affects substantive rights is presumed to be prospective in operation

unless made retrospective, either expressly or by necessary intendment, whereas a statute
which merely affects procedure, unless such a construction is textually impossible, is
presumed to be retrospective in its application, should not be given an extended meaning and
should be strictly confined to its clearly defined limits.

(ii) 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.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural
law.

(iv) 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.

(v) A statute which not only changes the procedure but also creates new rights and liabilities
shall be construed to be prospective in Operation unless otherwise provided, either expressly
or by necessary implication."

In the case of Mithilesh Kumari and another, vs. Prem Behari Khare16, the Apex Court in
Para 21 of its judgment as:

"A retrospective operation is not to be given to a statute so as to impair existing right or

obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided
without doing violence to the language of the enactment. Before applying a statute
retrospectively the Court has to be satisfied that the statute is in fact retrospective. The
presumption against retrospective operation is strong in cases in which the statute, if operated
retrospectively, would prejudicially affect vested rights or the illegality of past transaction, or
impair contracts, or impose new duty or attach new disability in respect of past transactions or
considerations already passed, However, a statute is not properly called a retrospective statute
because a part of the requisites for its action is drawn from a time antecedent to its passing.
The general scope and purview of the statute and the remedy sought to be applied must be
looked into and what was the former state of law and what the legislation contemplated has to

15
1994 AIR 2623, 1994 SCC (4) 602
16
AIR 1989 SC 1247

pg. 9
be considered. Every law that impairs or takes away rights vested agreeably to existing laws is
retrospective, and is generally unjust and may be oppressive. But laws made justly and for the
benefit of individuals and the community as a whole may relate to a time antecedent to their
commencement. The presumption against retrospectivity may in such cases be rebutted by
necessary implications from the language employed in the statute. It cannot be said to be an
invariable rule that a statute could not be retrospective unless so expressed in the very terms of
the section which had to be construed. The question is whether on a proper construction the
legislature may be said to have so expressed its intention".

CONSTITUTIONAL PROVISO:17

Constitution of India, Art.245 - Subordinate legislation - Extent of power - Rule making

authority has to act within limits of power delegated to it. Unlike Sovereign Legislature which
has power to enact laws with retrospective operation, authority vested with the power of
making subordinate legislation has to act within the limits of its power and cannot transgress
the same. The initial difference between subordinate legislation and the statute laws lies in the
fact that a subordinate law making body is bound by the terms of its delegated or derived
authority and that court of law, as a general rule, will not give effect to the rules, thus made,
unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled.
Further, retrospective effect cannot be given to a subordinate legislation unless it is authorized
by the parent statute or a validating statute.

Ancillary and Incidental Legislation

It is well settled that power to legislate on a topic of legislation carries with it the power to
legislate or on in ancillary matter which can be said to be reasonably includent in the power
given. E.g., the power to legislate with respect to land includes the power to legislate with
respect to mortgage of land, lease of land etc. as the subsidiary subjects.

THE CONCEPT OF ULTRA VIRES: In India, when the Legislature delegates legislative
power to an administrative authority without offering any guide lines, the validity of the
relevant statute may be attacked on following grounds, viz;

a. The statute offends against Arts. 14 & 19 of the Constitution on the ground of
unreasonable or arbitrary on the part of the legislature to confer uncontrolled
discretionary power upon an administrative authority.

b. That the statute is invalid because of excessive delegation of abdication of legislative

power by the legislature.

c. retrospective effect cannot be given to a subordinate legislation unless it is authorized

by the parent statute or a validating statute.

17
http://www.mondaq.com/india/x/19039/Principles+of+Retrospective+Operation+of+Law

pg. 10
In Maharaja Sris Chandra Nandu & Another v. Rakhalananda Thakur and Anothers18,
Retrospective legislation is one of the incidents of plenary legislative power and in United
Provinces v. Mt. Atiqua Begum19, the Federal Court held that there was nothing in the
Government of India Act to deprive even the provincial legislatures of the power of
retrospective legislation. Under the Constitution there is only one restriction imposed upon the
power of retrospective legislation. Article 20 of the Constitution imposes such a restriction
upon retrospective penal legislation. There is no such restriction on legislative power with
regard to taxation. In the absence of any constitutional provision against retrospective fiscal
legislation, it is not right to argue that the Court should apply such a restriction. To adopt the
language of Frankfurter, J. in a recent American case, the ultimate touchstone of
constitutionality is the Constitution itself and not any general principle outside it.

In Rafiquennessa v. Lal Bahadur Chetri 20,Lest it be thought that a vested right cannot be
taken away at all by retrospective legislation, reference may be made to Rafiquennessa v. Lal
Bahadur Chetri AIR 1964 SC 1511 where it was stated that even where vested rights are
affected, legislature is competent to take away the same by means of retrospective legislation;
and retrospectivity can be inferred even by necessary implication. In that case, the provisions
of the assam non-agricultural urban areas tenancy act were made applicable to pending
proceedings.

In Birla Cotton Spinning and weaving meels Ltd. And anothers v. State of Haryana and
Anr.,21 Mr. Jetly, learned counsel for the Department strongly relied upon two decisions of the
Punjab and Haryana High Court in the case of Birla Cotton Spinning and Weaving Mills Ltd.
v. The State of Haryana, reported in (1979) 43 STC 158 and in the case of Bharat Engineering
Company v. The Assessing Authority, Karnal reported in (1980) 45 S.T.C 363. In both these
cases the Punjab and Haryana High Court held that a legislature has the power to enact
retrospective legislation. Hence such retrospective legislation is valid and it cannot be
challenged.

18
(1941) 43 BOMLR 794
19
AIR 1941 PC 16
20
1964 AIR 1511, 1964 SCR (6) 876
21
1979 43 STC 158 P H

pg. 11
 Conclusion
The power to make a law includes the power to give effect to it prospectively (i.e. for
future acts – law to take effect from a future date) as well as retrospectively.

The meaning of a validation act is to remove the causes of ineffectiveness or invalidity of

actions or proceedings which are validated by a legislative measure. A validating law is upheld
first by finding out whether legislature possesses competence over die subject matter/and,
whether by validation the legislature has removed the defects which the courts have found in
the previous law.

where an impugned act passed by a state legislature is invalid on the ground that state
legislature did not have legislative competence to deal with the topic covered by it, then even
parliament cannot validate such act, because such validation would give the state legislature
power over subjects outside its jurisdiction.

When the legislature cures the said infirmity and passes a validating law, it can make the said
provisions of earlier law effective from the date when it was passed. The retrospective
application of law thereby removing the basis of earlier judicial decision (i.e. a decision based
on earlier law) is not an encroachment on the judicial power. However, the legislature cannot
by bare declaration, without anything more, reverse or override a judicial decision.

It is well settled that power to legislate on a topic of legislation carries with it the power to
legislate or on in ancillary matter which can be said to be reasonably includent in the power
given. E.g., the power to legislate with respect to land includes the power to legislate with
respect to mortgage of land, lease of land etc. as the subsidiary subjects.

So by observing the different opinions of jurists and experts in India on retrospective and
retroactive laws, a conclusion may be drawn in such a way that only substantive civil laws can
be operated retrospectively if the statute specifically prescribes it or there exists large interest
of the public as whole otherwise all statutes shall be operated retroactively.

pg. 12