UNIT- V

COMMENCEMENT AND
OPERATION OF
STATUTES
 - A Brief Synopsis of Discussion -
1.) Commencement of Statutes
2.) Operation of Statutes
(i) Prospective Operation
(ii) Retrospective Operation
 Why is there a presumption against retrospectivity
 Nature of the Statute in consideration
 Statutes dealing with Substantive Rights
 Statutes dealing with Procedure
3.) Other Important Considerations
 1.
COMMENCEMEN
T OF A STATUTE
 1. COMMENCEMENT OF A
STATUTE

In India ‘Commencement’, with

respect to an Act or regulation,
means the ‘day’ on which the
Act or Regulation comes into
force.
-Sec.3(13) of the General Clauses Act, 1897.
AT THE STROKE OF THE
MIDNIGHT HOUR!!
 Sec.5 Coming into operation of
enactments
(1) Where any Central Act is not expressed to
come into operation on a particular day, then
it shall come into operation in the day on
which it receives the assent…of the President.
(2) Unless the contrary is expressed, Central Act
or Regulation shall be construed as coming
into operation immediately on the expiration
of the day preceding its commencement.
 Therefore…

Thus, if a Central Act is assented to by the

President on 24th July at 10:30 a.m., it
would have construed to come into
operation on the midnight between 23rd
and 24th July i.e. immediately at 00 hours
on the day of assent.
 COMMENCEMENT OF A
STATUTE IN A STATE

Rules applicable for the State Acts

Many states in When no date is Comes into force when

India have their prescribed for assent of the Governor
own GCA commencement is published

Publication in the Official Gazette required for

the State Acts
COMMENCEMENT = PUBLICATION
IN A STATE STATUTE

When no provision is made about

the date of commencement

Publication in the official S.23(5) of the GCA:

gazette amounts to Publication of a rule, bye-law
commencement amount to conclusive proof
 Publication- a conclusive proof
• Sec 23(5): The publication in the official
Gazette of a rule or by-law purporting to
have been made in exercise of a power to
make rules or by-laws after previous
publication shall be conclusive proof that
the rule or the by-law has been duly made.
 Harla v. State of Rajasthan
AIR 1951 SC 467

The
accused
was
The
It was
prosecute Suprem
proved
d for an e Court
that the
offence held the
under the law was
law to
Jaipur unpubli
be
Opium shed
Act,
invalid.
1924.
Reasoning of the Supreme Court
Publication of
a reasonable
sort is essential

One cannot punish

a person under a
law of which he
had no knowledge

Principles of
Natural Justice
requires
publication
 Observations of the Supreme Court
• the rule that in the absence of a specified date mentioned
by the Statute of its commencement, it will come into force
from the day of assent of the President of India or the
Governor of a State is received, may cause avoidable
hardship to people even though normally the government
does not take much time to publish a statute once it has
received the assent. The hardship can be mitigated if the
commencement of a statute is presumed from the date of
its publication in the Official Gazette.
***
Commencement can be deferred
Commencement can
be postponed to some
unspecified future
date

Different dates could

be appointed for
different parts of the
same Act

Statute can commence

by way of fixing of a
fresh date by the Govt.
in the official gazette
Power to bring into force
Commencement can be deferred

When Act empowers A writ of mandamus

A.K.Roy v. UOI the Govt. to bring it
does not lie to compel the
govt. to bring it on the
AIR 1982 SC 710 into operation same day

However…

A writ can be issued for

If considerable time
Altmesh Rein v. UOI the govt. to consider the
has elapsed since the
AIR 1988 SC 1768 bringing into force of the
passing of the statute statute
 Some other Aspects

When the provision is yet to come

into force

Then doctrine of legitimate

expectation is not applicable.
 Fuerst Day Lawson Ltd. v. Jindal
Exports Ltd. AIR 2001 SC 2293
Act is identically
Ordinance worded

Act contains a
provision that
reads:

‘all actions and orders The Act is deemed to be in

under the Ordinance are operation & effective from
deemed to have been under the date of the
the Act, for all practical commencement of the
purposes’ Ordinance
2.) THE RULE OF
PROSPECTIVE
APPLICATION
 The Statute Commenced to be
applied Prospectively
nova constitutio futuris formam
imponere debet non praeteritis

every new enactment should affect

future and not past times.
 How strong is the
presumption..???

• 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”.
What does the presumption
envisage?
Presumption
against
Retrospective
legislation

Prospective Retrospective
application is in application can
consonance with disturb settled
natural justice matters
Presumption in favor of Prospectivity
• unless the terms of a statute expressly so
provide or necessarily require it,
retrospective operation should not be given
to a statute so as to take away or impair an
existing right or create a new obligation or
impose a new liability otherwise than as
regards a matter of procedure.
- Govinddas v. Income Tax Officer
AIR 1977 SC 552
3. Retrospective
Operation of
Statutes
 Legislative retroactivity- A Prologue

Whenever a new law affects

●

either past legal

relationships or decisions
made by private parties in
The question on
reliance on prior law, the
retrospectivity question of prospective or
retrospective application of
the new law becomes
significant.
What can a retrospective law do..?
Affect pre-
existing legal
relationships

Change the
scenario/basis on
which the legal
relationship was
created

Affect the plans

and expectations
of the parties
Presumption against Retrospective
Operation of Statutes
Presumption
against
retrospectivity not
rigid

Legislature has plenary

powers to legislate
prospectively as well as
retrospectively

To be seen in light of
the subject-matter
and language used
in the statute
• The inhibition against retrospective
construction must vary secundum subjectam
materiam.

• “the basis of the rule is no more than simple

fairness which ought to be the basis of every
legal rule.”
Retrospectivity can be found in
two circumstances
 Retrospective Legislation in
International Standards

Curative Legislation
Beneficial Legislation
Declaratory Legislation
Substitution/Amendment
Procedural Legislation
War Crimes Legislation
 Statutes dealing with substantive
rights

• “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.”
Statutes dealing with substantive rights
Takes away or
impairs vested
Every statute rights

which…** Creates new

disability

Presumed
NOT to
have
Creates new
retrospectiv obligations
e effect**

Imposes
new duty
 New India Insurance Co. Ltd. v.
The

its
amended
Provision s of th e Work men’s
provisions Act,
Compensation
foramend
provided
1923 with
ed Sec 4 and
enhanced rate of
Schedule IV were construed.
Laxmi (2003) 8 SCC 718
compensation.

The
Supr
eme
Cour
t
stron
gly
emp
hasiz
ed
that
unles
s the
amen
ding
Act
expr
essly
or by
impli
catio
n
make
s the
amen
dme
nt
retro
spect
ive in
oper
ation
,
provi
sion
will
be
pros
pecti
ve.
 Mithilesh Kumari & Anr. v. Prem
Bihari Khare, AIR 1989 SC 1247
‘R’ filed a suit requesting the court to declare him the sole and
real owner of the property

And also to permanently restrain ‘A’ from transferring the suit

property

It was decreed in all the courts

Matter before the Supreme Court
●
The parties living as Husband & Wife.
Facts ●
Man purchased some property in the name
of wife out of affection.

The purchase of ●
The man had purchased the
the property house benami for the appellant.

Benami ●
During the pendency of the appeal, the
Benami Transactions (Prohibition) Act,
transaction 1988 came into force.
 Sec. 4 Benami Transactions (Prohibition) Act, 1988

• No suit to enforce ‘any right in respect of

any property held benami’ shall lie by or
on behalf of a person claiming to be the
real owner; and ‘no defence based on any
right in respect of any property held
benami shall be allowed in any suit by or
on behalf of a person claiming to be the
real owner’.
The Supreme Court on Retrospective
Application of Law
Retrospective Presumption against
Operation not given retrospective application
unless provided by is strong if it affects past
the language transactions

However a statute is
not called
retrospective just
because

a part of the requisite

for its action is drawn
from a time antecedent
to its passing.
 Province of Retrospective Law as
But laws
Altho ughmade
takes away
benefit
rightsrelate
may
everyfor
o f the
v ested
unjust and may
antecedent
la wthe
orcommunity
impairs
toistime
that

generally
to their
be
per the Court
oppressive.
co mmitment.

The
pres
um
ptio
n
agai
nst
retr
osp
ecti
vity
may
be
reb
utte
d by
nec
essa
ry
imp
licat
ion
fro
m
the
lang
uag
e of
the
stat
ute
What did the legislate contemplate??

General
Remedy scope &
sought to purview
be applied

The court has to be satisfied that

the statute is in fact retrospective
Coming back to the present case

Declara ●
When an Act is declaratory in
nature, the presumption against
tory Act retrospectivity is not applicable.

Parliament ●
The Parliament has jurisdiction to pass a
declaratory legislation.
has ●
A statute in effect declaring the benami
transactions to be unenforceable belongs to
jurisdiction this type.
 Law Commission Report: External Aid

• The Law Commission wanted the

legislation replacing the Benami
transaction to be retroactive in
operation.
The interpretation of the plain
meaning of the definition
‘any property held benami’ ‘at the moment
of the Act coming into force’

All such properties may be affected

irrespective of their beginning,
duration and origin.
 Therefore…

●
“any property held benami” is
Sec.4 not limited to any particular
time, date or duration.

Sweep ●
envisages past benami
transactions also within its
of Sec. 4 retroactivity.
Declaratory and Curative Legislation
Almost like
interpretation
Such statutes need clause
not contain the words
“it is declared”

These Acts are

there to remove
doubts

Substance and
not the form is
material
Often used to
remove judicial
error
 Applicability of Amending Act to Pending
Cases
• When the law is amended during the
pendency of an action, the rights of parties
are decided according to law, as it existed,
when the case had ‘begun’, unless a new
statute shows a clear intention to the
contrary.

• If the rights are ‘accrued’, then the new

law will not affect those rights.
-Retrospectivity-
Statutes dealing
with Procedure
 unless such a
Matters of procedure
construction is
1.)
are presumed to be
textually2.)
retrospective inadmissible.

If the new Act affects

matters of procedure
only, then

4.) 3.)
“it applies to all “no person has a
actions pending as vested right in any
well as future.” course of procedure.”

5.)
 The distinguishing categories

Law relating to change of forum and limitation The right to sue and right to appeal

Procedural in Nature Substantive in Nature

Right of Appeal: A Substantive Right

Appeal- Central Idea is that of a ‘Right’

Right to appeal vests in a suitor at the time of institution of

proceedings

It is a vested right, hence is presumably substantive

Therefore, the general principles
that emerge….
Institution of suit
Appeal: carries the
Substantive Right implication that right
of appeal is preserved

It is a vested right &

it accrues to the
litigant on the
institution of the suit
 Can be taken away
THEREFORE Litigant BUT
has no vested
only expressly or right in the composition
impliedly by way of of the Bench, which is to
subsequent enactment hear the appeal
Appeal- Subtracting Substantive
from the Procedural

Constitutio
n of Bench
at the The Right
Appellate to Appeal.
Level. Prospective
Retrospecti
ve
 Some Recent Statements on
Retrospectivity
• Classification of a statute as
substantive or procedural does
not necessarily determine
whether it may have a
retrospective operation.
The true principle is: Fairness
Value of rights
which the
By the
The circumstances statute affects suggested
in which the retrospective
legislation was
created effect
L’office
Phospates v. Extent to which
Yamashita the value is
Shinnihon extinguished or
diminished
Steamship
Co. Ltd.
(1994) 1 All
Clarity of the ER 20
language used by
the Parliament

Unfairness of
adversely
affecting rights
 Antonelli v. Secretary of State for
Trade & Industry (1998) 1 All ER 997 (CA)

S.3(1)(a) ●
The Director is authorized to
make an order prohibiting a
(i) of the person from doing any estate
agency work when he considers
Estate him to be unfit to practice on the
ground that ‘he has been convicted
Agents of an offence involving fraud or
Act, 1979 other dishonesty or violence.’
 The question in this case

• Whether a conviction which

occurred prior to the Act could
enable the Director to make a
disqualification order?
 The Court held
Reasoning
of the Court

Director had the

discretion to consider the
conviction for
disqualifying the person.

The power was

Test of fairness intended for the
is satisfied. protection of the
Public.
The doctrine of fairness
was referred to by the
Supreme Court in
Vijay v. State of
Maharashtra
(2006) 6 SCC 289
 Vijay v. State of Maharashtra

Langua ●
‘No person shall be a
ge of member of the Panchayat or
continue as such who has
the been elected as a councilor of
Zila Parishad or as a
provisio member of the Panchayat
Samiti.’
n
 The Court noted

1.) The provision is retrospective and is applicable

●

to existing members of a Panchayat.

If literal reading giving retrospective effect is not

2.)
●

producing absurdity, the same would not be construed

as prospective.

3.) The doctrine of fairness is to be

●

applied.
 Further…

When a For the benefit Even in absence of

of the a provision, the
new law is community as a statute may be held
enacted whole to be retrospective.
Language not always decisive
• ‘a debtor commits an act of bankruptcy’:
given retrospective effect.

• ‘if a person has been convicted’:

anterior convictions were included.

• ‘has made’; ‘has ceased’; ‘has become’

could be used for acts happening before or after
coming into force of the statute
 Statutes regulating Succession

To be given prospective effect

Such statutes would not affect successions that are already

opened

As otherwise, it will affect persons of their vested rights

 Eramma v. Veerupanna
AIR 1966 SC 1879
Sec 8 of the Hindu ●
Male “dying intestate” after the
Succession Act,
commencement of this Act.
1956

The significant ●
The material point of time is the
date date when succession opens.

●
It has no application where the succession opened
No retrospective before the Act.
If the property is already vested in a person u/the
effect
●

old Hindu Law, he cannot be divested.

 Kotturuswami v. Veeravva
AIR 1959 SC 577

Sec.14 of ●
Any property possessed by a female
Hindu, whether acquired before or
the HSA, after the commencement of the Act,
1956 shall be held by her as full owner.

Language ●
The Hindu female should have
Retrospecti possessed the estate at the time
the Act came into force.
ve
 Retrospectivity cannot be broadly read

• If the female had alienated the

estate prior to the coming into
force of the Act, neither she nor
the alienee get the right of full
ownership under the section.
Penal Statutes
 Some essential ingredients to be seen
Mollificati

Strict
on

Construction of
Penal Statutes

Art.20 (1) of the

Constitution

Liberty cannot
be wrongfully
compromised
ICCPR, 1966
Art.15.1 of the
 Protection Against Ex Post Facto
Laws
• Art. 20(1): No person shall be convicted of
any offence except for violation of the 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
• Ordinarily a criminal legislation imposing
heavier suffering must be so interpreted as
to speak futuristically. Expectations of
convicted citizens of regaining freedom or
existing legal practice should not be
frustrated by subsequent legislation or
practice unless the language is beyond
doubt.

- Maru Ram v. Union of India

AIR 1980 SC 2147
 Penal Statutes

Otherwise shocks one’s

Penal statutes Prospective sense of justice

All ingredients of that offence after the new Act comes

If an act creates an offence must have been committed into operation

The doer cannot be Which is ordinarily the principal

That is because imputed with mens rea element in the proof of guilt
 Pyare Lal Sharma v.
Managing Director, Jammu
& Kashmir Industries Ltd.
AIR 1989 SC 1854
Service rules of the amendment added
J&K Industries
Employees was
more grounds of
amended in 1983. termination

period of un-authorized
absence prior to the date of The Supreme
amendment could not be
taken into consideration Court held

Presumption against but applies also to laws

Retroactivity not only which provide for other
applicable for penal consequences of a
criminal offences severe nature
“It is a basic principle of natural
justice that no one can be
penalised on the ground of a
conduct which was not penal on
the day it was committed.”
Mollification permissible
●
The prohibition of Art.20 of the

1.) Constitution to enact retrospective penal

laws has no application to a law which only
mollifies the rigor of an existing penal law.

●
Art 15.1 of the ICCPR, 1966 which was ratified by

2.)
India in 1979 provides: ‘If subsequent to the
commission of the offence, provision is made by law
for imposition of a lighter penalty, the offender
shall benefit thereby.’
 Rattan Lal v. State of Punjab,
AIR 1965 SC 444

The Probation of Offenders Act,

1958

Act didn’t apply to the The Supreme

but it was extended
area where the offence Court held that the
to that area where
was committed at the benefit of the Act
time of commission of his appeal was
could be given to
the offence pending.
the accused.
 State v. Gian Singh
AIR 1999 SC 3450

The accused was Punishment

convicted prescribed for the
u/TADA offence was ‘death’

The TADA Act

expired in 1985

But the proceedings The old TADA was

continued u/the replaced by new
Saving clause TADA Act, 1987
Question before the Court
 The two reasons put forth by the
Court
The 1987 Act gave an overriding effect to
If subsequent legislation the Act over any enactment in case of
downgrade the punishment inconsistency.

It would be salutary principle The old Act after expiry

to extend the benevolence became inconsistent

to the accused awaiting with the present Act with

sentencing respect to sentence
 Pratap Singh v. State of Jharkhand
(2005) 3 SCC 551
Repealed in
JJ Act, 1986
2000 by

JJ (Care &
Protection) Act,
2000

Sec.20 gives the Those who are

juveniles under the new
benefit of the new Act..even though not so
Act to pending cases under the Old Act
Section 20 Special provision in respect of
pending cases.
• Notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any court in
any area on the date on which this Act comes into force in
that area, shall be continued in that court as if this Act had
not been passed and if the court finds that the juvenile has
committed an offence…
Explanation.—In all pending cases including trial, revision,
appeal or any other criminal proceedings in respect of a
juvenile in conflict with law, in any court, the determination
of juvenility of such a juvenile shall be in terms of clause (l) of
section 2, even if the juvenile ceases to be so on or before the
date of commencement of this Act and the provisions of this
Act shall apply as if the said provisions had been in force, for
all purposes and at all material times when the alleged
The Court held
 Limits to mollification

Substa ●
Not extended to
ntive ‘ingredients’
substantive
of
offence
Offenc after conviction during
pendency of appeal.
e
 For example….

Earlier Act Later Act The case

Person actually
Possession of Possession possessed small
any quantity of small quantity but
convicted under the
of narcotics quantity old Act

Punishment as
is an Lesser per the old Act
would be
offence. offence applicable
 Benefits of Mollification

With respect to the

ingredients of the offence

After institution of During pendency of

proceedings appeal

Cases pending trial Cases pending appeal

Dayal Singh v. State of Rajasthan
(2004) 5 SCC 721
 Food Inspector
From the shop
took a sample of
hard boiled sugar of the appellant

Sample found
adulterated due to Sent the sample
presence of mineral for analysis
oil

Food Inspector Found guilty by

filed a complaint the CJM & was
on 29/1/1980. sentenced
 He preferred an Appeal
During the a Notification
pendency of the was issued
appeal … whereby…

Cen. Govt. amended

the Prevention of
Food Adulteration
Rules, 1955.

The presence of
1st that the mineral
mineral oil was
oil was of food grade
permitted subject to
if used as a lubricant
two conditions

2nd it did not

 The Court
The amendment did Mollification of rigors
not unconditionally of criminal law does
permit the presence of not fall within the said
mineral oil prohibition

Question of
retrospectivity
depends on principles
of interpretation

Considering the facts of

this case, mollification
cannot be provided in
these circumstances.
N.P. Basheer v. State of Kerala
(2004) 3 SCC 609
 The Constitutional
validity of the proviso to
Sub-section 1 of Section
41 of the NDPS
(Amendment) Act, 2001
 The Background of the case
NDPS Act, Prescribed for
severe deterrent
1985 punishment

For the possession

of any quantity of
drugs etc.

R.I. of 10 years & 1 The provisions of bail

lakh fine was the was stringent due to
minimum which hardly anyone
punishment could get bail
 The 1985 Act was amended in 2001

The Amending Act did 2 things

Ra tio na lized the s tructure o f punis hment The a pplica tio n o f s trict ba il pro v is io ns

…linked to the quantity of narcotic drug or

By providing graded sentences … psychotropic substance Restr ic te d only to those offe nder s who i ndul ged i n se rious offe nc es.
 The Statement of Objects &
• The Narcotic Drugs andReasons
Psychotropic Substances Act, 1985 provides
deterrent punishment for various offences relating to illicit trafficking
in narcotic drugs and psychotropic substances. Most of the offences
invite uniform punishment of minimum ten years rigorous
imprisonment which may extend up to twenty years. While the Act
envisages severe punishments for drug traffickers, it envisages
reformative approach towards addicts. In view of the general delay in
trial it has been found that the addicts prefer not to invoke the
provisions of the Act. The strict bail provisions under the Act add to
their misery. Therefore, it is proposed to rationalise the sentence
structure so as to ensure that while drug traffickers who traffic in
significant quantities of drugs are punished with deterrent sentences,
the addicts and those who commit less serious offences are sentenced
to less severe punishment. This requires rationalisation of the
sentence structure provided under the Act. It is also proposed to
restrict the application of strict bail provisions to those offenders who
indulge in serious offences.
As a result of this…the Act
introduced

The 2001 Act

“small quantity” “commercial quantity”

Lesser punishment Greater punishment

 Section 41 of the Act
41. Application of this Act to pending cases. (1) Notwithstanding
anything contained in sub-section (2) of section 1, all cases
pending before the courts or under investigation at the
commencement of this Act shall be disposed of in accordance
with the provisions of the principal Act as amended by this
Act and accordingly, any person found guilty of any offence
punishable under the principal Act, as it stood immediately
before such commencement, shall be liable for a punishment
which is lesser than the punishment for which he is otherwise
liable at the date of the commission of such offence:
Provided that nothing in this Section shall apply to cases
pending in appeal.
 The Main contention before the
court
The section divides the cases into the following
categories: -
a) Cases pending before the Trial Courts.
b) Cases pending investigation; and
c) Cases where the trials have concluded and
which are pending in appeal.

There is no rational basis for such classification

What is the Parliamentary Objective
Statement of
Objects &
reasons

1) Avoidance of
Delay in Trials

2) Rationalization
of sentencing
structure
The Supreme Court thus stated:
 Statutes prescribing
posterior
disqualification on past
conduct
• “No man has a vested right
in his past crimes and their
consequences as would
entitle him to insist that in
no future legislation shall
any regard whatever be had
to his previous history.”
 This is when the object of
the statute is to protect the
public and not inflict
punishment
 Queen v. Vine
(1875) 10 QB 195

The ●
Every person convicted
of felony shall be
Provisi forever disqualified
from selling spirits by
on retail.
 The Court Noted:

●
Disqualification applied to every
convicted felon irrespective of
Held: whether he was so convicted prior to
or after the Act came into operation.

Reason ●
Object of the Act is not to punish the
offenders.
It is to protect the public from persons

ing:
●

convicted in the past as well as in the future.

 State of Bombay v. Vishnu
Ramachandra AIR 1961 SC 307
A person was convicted for theft
Facts
●

prior to 1949.

S.57 of the ●
Authorized the removal of a person ‘who
Bombay Police has been convicted’ of certain offences
Act, 1951 including theft.

The Supreme The Act does not create a new offence.

●

●
It is designed to protect the public from the activities of
undesirable persons who have been convicted of offences
Court of a particular kind.
 Fiscal
Statutes
 The Cardinal Principle

The law to be applied is that in force in the

assessment year unless otherwise provided
expressly or by necessary implication.

Applies to charging Does not apply to machinery

sections or procedural provisions
 Assessment- A Vested Right
Assessment Assessee cannot
creates a vested be subjected to
right reassessment

unless a
provision to that
effect inserted

either expressly or by
necessary implication
retrospective.
Liability to pay income tax is a
perfected debt
 Taxes in event of continuing Act
• A default in filing IT return is a continuing
default till the return is filed;
• Such a default though it commenced when
the old version of IT Act was in force, can be
dealt with under the provisions of the new IT
Act, if it continued after the commencement
of the new Act.
Maya Rani Punj v. C.I.T. Delhi
(1986 ) 1 SCC 445