Name : Rahul Sisodia

Class Roll No : 41

Examination Roll No : 17BLWS147

Semester : 6th

Course : B.A.LL.B (Hons.) SF.

BA. LL.B. (H) (VI)th Semester Online Examination, 2020

INTERPRETATION OF STATUTES

Paper No. III

Time: 10 DAYS Max. Marks: 75

Note: Answer all questions. All questions carry equal marks.

UNIT – 1

Q.1. “The rules of interpretation are like the tools of carpenter and sculptor”. Explain the above
mentioned statement while discussing the meaning and purposes of interpretation the statute.

A.1.

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Interpretation is a constitutive feature of legal practice. The need for interpretation arises when
our conventional ways of understanding break down. Lawyers use the forms of argument to
appraise claims about what is true as a matter of law. In many cases we may call them “easy
cases”, the relevant forms of argument all point to a single conclusion. But the forms of
argument do conflict and; when they do, the Tension must be resolved. Resolving this tension is
the activity of legal interpretation. It is in the act of interpretation that the fabric of law is
repaired, thereby enabling practitioners to go on with the practice. The language of law has a
rather dubious reputation in the lay public. It is something that one cannot understand or at least
not so easily, it is full of special technical expressions, one can get away with saying things in it
that one cannot get away with in ordinary language or at least not so easily, and so on. The use of
legal language is a technical use of language and thus distinct from ordinary use of language.
Communication pertaining to the domain of law takes place between the law giver and the men
of law in the first instance. This is typically oneway communication from the law giver, who is
not necessarily initiated into the mysteries of law, to the judge and the counsel, who are
necessarily so initiated being men of law. This one-way communication takes the form of
statutes. It is often said that the statute is often fragmentary and ill-considered and unjust.

Statutes seek to control the future by using broad forms of classes and categories. These are man-
made, and there are inevitably casus omissi, so that a measure of discretion is imported into
every decision as to whether a provision applied to the case in hand or not.

Judges in India employ a variety of the methods of interpretation. They sometimes boldly
interpret certain texts, to the point of giving them a meaning opposite to the original provisions.
Sometimes judges interpret a provision literally. They always attempt to maintain harmony
between the legislation they apply and changing times and needs. Judges are accustomed to
interpret the law and apply it to each separate instance. They take into account reasonable,
equitable moral and social needs more than methods. The courts for doing justice many a times
have ignored statutory language and disregarded it by using different canons of interpretation. In
any event, no system of legislation has been able to escape the need of it.

A statute is the will of the legislature. One of the characteristics of enacted law is its embodiment
in authoritative formula. The very words in which it is expressed the litera scripta – constitute a
part of the law itself. Legal authority is possessed by the letter, no less than by the spirit of the

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enactment. Hence it is that in the case of enacted law a process of judicial interpretation or
construction is necessary. The object of interpretation is to find out the intention of the
legislature. The task of interpretation is that of extracting from the formula all that law contains
of legal rules with a view to adapting it, as perfectly as possible, to the facts of life. Its object is
to enable others to derive from the language used the same idea which the author intended to
convey .The object of interpretation is to find out the intention of the legislature. In order that the
competent court may rightly apply the appropriate law, it is necessary that the words of the law
shall be properly constructed–interpreted.

To start with the origin of the term, it has been derived from the Latin term ‘interpretation’,
which means to explain, expound, understand, or to translate. Interpretation is the process of
explaining, expounding and translating any text or anything in written form. This basically
involves an act of discovering the true meaning of the language which has been used in the
statute.

Various sources used are only limited to explore the written text and clarify what exactly has
been indicated by the words used in the written text or the statutes. Interpretation of statutes is
the correct understanding of the law. This process is commonly adopted by the courts for
determining the exact intention of the legislature. Because the objective of the court is not only
merely to read the law but is also to apply it in a meaningful manner to suit from case to case. It
is also used for ascertaining the actual connotation of any Act or document with the actual
intention of the legislature.

There can be mischief in the statute which is required to be cured, and this can be done by
applying various norms and theories of interpretation which might go against the literal meaning
at times. The purpose behind interpretation is to clarify the meaning of the words used in the
statutes which might not be that clear. According to Salmond, “Interpretation” is the process by
which the court seeks to ascertain the meaning of the legislature through the medium of
authoritative forms in which it is expressed.

Purpose of interpretation:

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The three major reasons mentioned in The Law Making Process by Michael Zander are as
follows :-

1. Complexity of statutes in regards to the nature of the subject, numerous draftsmen and the
blend of legal and technical language can result in incoherence, vague and ambiguous language.

2. Anticipation of future events leads to the use of indeterminate terms. The impossible task of
anticipating every possible scenario also leads to the use of indeterminate language. Judges
therefore have to interpret statutes because of the gaps in law. Examples of indeterminate
language include words such as “reasonable”. In this case the courts are responsible for
determining what constitutes the word “reasonable”.

3. The multifaceted nature of language. Language, words and phrases are an imprecise form of
communication. Words can have multiple definitions and meanings. Each party in court will
utilize the definition and meaning of the language most advantageous to their particular need. It
is up to the courts to decide the most correct use of the language employed. General Rules of
Interpretation, Internal Aids to Interpretation, and External Aids to Interpretation, Literal Rule,
Golden Rule, Mischief Rule, Subsidiary Rules and Harmonious Construction are some of the
most important rules.

CASE LAWS –

1. Hyderabad Asbestos Cement Products v. Union of India --

The Court restated the rule for interpretation of the words ‘and’ and ‘or’ and held as that
-- the language of the rule is plain and simple. It does not admit of any doubt in
interpretation. Provisos 1(i) and 2(i) are separated by the use of conjunction "and". They
have to be read conjointly. The requirement of both the provisos has to be satisfied to
avail the benefit." Following are examples of few cases when the rule of interpreting the
word “or” as normally disjunctive and “and” as normally conjunctive has been forgone
by the Judges to prevent injustice or to give effect to the real purpose of the Statute.

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2. Manmohan Das Shah v. Bishan Das --

The Supreme Court held that -- the ordinary rule of construction is that a provision of a
Statute must be construed in accordance with the language used therein unless there are
compelling reasons. Such as, where a literal construction would reduce the provision to
absurdity or prevent the manifest intention of the legislature from being carried out.
There is no reason why the word "or" should be construed otherwise than in its ordinary
meaning. If the construction suggested by Mr. Desai were to be accepted and the word
"or" were to be construed as meaning "and", it would mean that the construction should
not only be such as materially alters the accommodation but is also such that it would
substantially diminish its value”.

UNIT- 2

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Q.2. “The words of the statute have to be given grammatical and ordinary meaning irrespective
of possible consequences resulting from it”. Discuss it while bringing out the differences
between Literal and Golden rules of interpretation.

A.2.

‘THE GOLDEN RULE’-

It has got this name because it solves all the problems of interpretation. The rule says that to start
with we shall go by the literal rule, however, if the interpretation given through the literal rule
leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity, then in all
such events the literal meaning shall be discarded and interpretation shall be done in such a
manner that the purpose of the legislation is fulfilled. The literal rule follows the concept of
interpreting the natural meaning of the words used in the statute. But if interpreting natural
meaning leads to any sought of repugnance, absurdity or hardship, then the court must modify
the meaning to the extent of injustice or absurdity caused and no further to prevent the
consequence.

The rule explains, that the consequences and effects of interpretation deserve a lot more
important because they are the clues of the true meaning of the words used by the legislature and
its intention. At times, while applying this rule, the interpretation done may entirely be opposite
of the literal rule, but it shall be justified because of the golden rule.  The presumption here is
that the legislature does not intend certain objects. Thus, any such interpretation which leads to
unintended objects shall be rejected.

CASE LAWS --

1. State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604 –

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 There was a period of limitation was prescribed for, under section 18 of land acquisition
act, 1844, that an appeal shall be filed for the announcement of the award within 6
months of the announcement of the compensation. Award was passed in the name of
Quiser Jehan. It was intimated to her after the period of six months about this by her
counsel. The appeal was filed beyond the period of six months. The appeal was rejected
by the lower courts. It was held by the court that the period of six months shall be
counted from the time when Quiser Jehan had the knowledge because the interpretation
was leading to absurdity. The court by applying the golden rule allowed the appeal.

2. State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276 –

A transporting company was carrying a parcel of apples was challenged and charge-
sheeted. The truck of the transporting company was impounded as the parcel contained
opium along with the apples. At the same time, the invoice shown for the transport
consisted of apples only. Section 11 of the opium act 1878, all the vehicles which
transport the contraband articles shall be impounded and articles shall be confiscated. It
was confiscated by the transport company that they were unaware of the fact that opium
was loaded along with the apples in the truck.

The court held that although the words contained in Section 11 of the said act provided
that the vehicle shall be confiscated but by applying the literal rule of interpretation for
this provision it is leading to injustice and inequity and therefore, this interpretation shall
be avoided.

The literal rule and its rationale

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It can be said as the first rule of interpretation. According to this rule, the words used in this text
are to be given or interpreted in their natural or ordinary meaning. After the interpretation, if the
meaning is completely clear and unambiguous then the effect shall be given to a provision of a
statute regardless of what may be the consequences. The basic rule is that whatever the intention
legislature had while making any provision it has been expressed through words and thus, are to
be interpreted according to the rules of grammar.

It is the safest rule of interpretation of statutes because the intention of the legislature is deduced
from the words and the language used. The only duty of the court is to give effect if the language
of the statute is plain and has no business to look into the consequences which might arise. The
only obligation of the court is to expound the law as it is and if any harsh consequences arise
then the remedy for it shall be sought and looked out by the legislature.

CASE LAWS -

1. State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317 –

In the following case there was a person, who was caught along with the counterfeit
currency “dollars” and he was charged under section 120B, 498A, 498C and 420 read
with Section 511 and 34 of Indian Penal Code for possessing counterfeit currency. The
accused contended before the court that a charge under section 498A and 498B of Indian
Penal Code can only be levied in the case of counterfeiting of Indian currency notes and
not in the case of counterfeiting of foreign currency notes. The court held that the word
currency notes or bank note cannot be prefixed. The person was held liable to be charge-
sheeted.

2. Maqbool Hussain v. State of Bombay -- 

In this case, the appellant, a citizen of India after arriving at the airport did not declare
that he was carrying gold with him. During his search was carried on, gold was found in
his possession as it was against the notification of the government and was confiscated

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under Section 167(8) of Sea Customs Act. Later on, he was also charged under section 8
of the Foreign Exchange Regulations Act, 1947.  

The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more
than once for the same offence. This is considered as double jeopardy. It was held by the
court that the Seas Act neither a court nor any judicial tribunal. Thus, accordingly, he was
not prosecuted earlier. Hence, his trial was held to be valid.

UNIT – 3

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Q.3. Examine the role played by parliamentary history and dictionaries in the interpretation of
statutes.

A.3.

‘PARLIAMENTARY HISTORY’-

According to the leading authorities, there is no precise meaning of the term “legislative history.”
Mostly, the term is used to denote documents relating to events that occurred during the
conception, preparation, and passage of the enactment.

Peter Hogg considers legislative history to include the following materials:

1. The report of a royal commission or law reform commission or parliamentary committee

recommending that a statute be enacted;

2. A government policy paper (whether called a white paper, green paper, budget paper or
whatever) recommending that a statute be enacted;

3. A report or study produced outside government which existed at the time of the enactment of
the statute and was relied upon by the government that introduced the legislation;

4. Earlier versions of the statute, either before or after its introduction into Parliament or the
Legislature;

5. Statements by ministers or members of Parliament and testimony of expert witnesses before a

parliamentary committee charged with studying the bill; and

6. Speeches in the Parliament or Legislature when the bill is being debated.

Absent from the foregoing list are explanatory memoranda which are documents explaining the
contents and objects of the bill to members of the house- frequently used in some common law
jurisdictions, such as Australia. These materials are also considered to be part of legislative
history. The parliamentary procedure is similar across most common law jurisdictions, except for
the United States. After the draft legislation has been accepted by the government, it is
introduced in the Parliament. It then proceeds through the normal stages of first and second
readings, a reference to committee, report stage, and final reading of the bill.

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a. English Practice --

English traditional view is that ‘the intent of the Parliament which passed the act is not to be
gathered from the parliamentary history of the statute.’ The Bill in its original form or the
amendments considered during its progress in the legislature are not admissible as aids to
construction. Recommendations contained in the report of a Royal Commission which may have
led to the introduction of the measure in Parliament cannot be used as evidence for the purpose
of showing the intention, i.e., purpose or object of the Act. The Courts are entitled to consider
such external facts as may be necessary to understand the subject-matter to which the statutes
relate or they can also have regard to the mischief which the statute is intended to remedy. The
exclusionary rule has been relaxed to admit the reports of the Commission preceding statutory
measure as evidence of surrounding circumstances with reference to which the words in the
statute are used.

In Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg, AG, the House
of Lords unanimously held that the report of a committee presented to the Parliament
proceedings, the legislation could be seen for finding out the then state of law and the mischief
required to be remedied. But the majority held that the report could not be looked at for finding
out the intention of the Parliament, i.e., for a direct statement of what the proposed enactment
meant even though the report set out a draft bill which was enacted without any alteration.

b. Indian Practice --

The Supreme Court has used the aid of Parliamentary history in resolving questions of
construction but it can be said that the Supreme Court generally has enunciated the said rule of
exclusion of Parliamentary history in the way it was traditionally enunciated by English Courts.
But in a few cases, it has been held that the legislative history within circumspect limits may not
be consulted by the Courts in resolving ambiguities. Legislative history and precedent English

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statutes may be taken into consideration in giving a beneficent interpretation to a provision in an
act. In determining legislative intent, even a minister’s budget speech was taken into
consideration.

CASE LAWS --

1. Chiranjit Lal Chowdhary v Union of India, Fazal Ali, J, admitted Parliamentary history
including the speech of the Minister introducing the Bill as evidence of the circumstances which
necessitated the passing of the Act, a course apparently approved in later decisions.

2. K.S. Paripoornan v State of Kerala, it was held that speeches of members of Parliament are
not admissible as extrinsic aids, although the speech of the mover of the bill can be referred to
find out the object intended to be achieved by the Bill. Similarly, it was held that statements
made by a Minister in the house who had moved the Bill in Parliament could be referred to
ascertain the mischief sought to be remedied by legislation but it could not be relied on for
interpreting provisions of the enactment.

3. Indira Sawhney v Union of India, the Supreme Court referred to Dr. Ambedkar’s speech in
the Constituent Assembly and observed interpreting Article 16 (4), ‘that the debates in the
Constituent Assembly could be relied upon as an aid to interpretation of a constitutional
provision is borne out by a series of decisions of the Court.

‘DICTIONARIES’-

Words used in a statute should be interpreted in the Light of their ordinary sense. When a word is
not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense
in which that word is understood in common parlance. Dictionaries can be consulted by the
courts whenever the need arises to know the ordinary sense of a word. However, in selecting one
out of the various meanings of a word, regard must always be had to the context as it is a
fundamental rule that “the meanings of words and expressions used in an Act must take their

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colour from the context in which they appear”. The court must be careful because it is not
necessary the dictionary meaning of a word may be the true meaning in a particular context.

It is for the court to interpret the statute as best as it may. In so doing the court may no doubt
assist themselves in the discharge of their duty by any literary held they can find, including of
course the consultation of standard authors and reference to well-known and authoritative
dictionaries. In the words of Jeevan Reddy, J. “A statute cannot always be constructed with the
dictionary in one hand and the statute in other. Regard must also be had to the scheme, context
and to the legislative history”. Again Judicial decisions expounding the meaning of words in
construing statues in pari materia will have more weight than the meaning furnished by
dictionaries.

CASE LAWS –

1. Kanwar Singh v. Delhi Administration --

The appellants beat up the officers of the respondents while the latter were pounding up
stray cattle. The appellants were charged under section 332, Indian Penal Code but they
pleaded the right of private defense of property. The question was whether the cattle
being pounded up were abandoned within the meaning of section 418, Delhi Municipal
Corporation Act, 1957. The appellants emphasized on the dictionary meaning of the term
which means ‘Complete leaving of a thing as a final rejection of one’s responsibilities so
that it becomes ownerless’. Observing that the acceptance of dictionary meaning would
destroy the primary purpose of the Act itself which could never is the intention of the
legislature; the court held that abandoned means Unattended or let loose, in the present
context of the statute.

2. Motipur Zaminday Company private Limited v. State of Bihar --

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 The question was whether sales tax could be levied under the Bihar Sales Tax Act 1947
on the sale of sugarcane. The applicant argued that sugarcane being green vegetable was
exempt from imposition of tax. The dictionary meaning of vegetable was quoted in
Support of the argument. The Supreme Court rejected the contention and held that in the
context of the Act vegetables mean only such vegetables as can be grown in a kitchen
garden and used during lunch and dinner as articles of food. This was the common
parlance meaning of the term and the legislature intended the word to be under stood only
in such sense and consequently, the dictionary meaning was not of much consequence
under the circumstances of the case.

UNIT- 4

Q.4. “The rule which requires that penal statutes should be construed strictly, has lost much of its
force in recent times”. Do you agree with the above statement? Substantiate your answer and
refer to decided cases.

A.4.

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‘PENAL STATUTES’

The principle that a statute enacting an offence or imposing a penalty is to be strictly construed is
not of universal application which must necessarily be observed in every case. It is now only of
limited application and it serves in the selection of one when two or more constructions are
reasonably open. The rule was originally evolved to mitigate the rigour of monstrous sentences
for trivial offences and although that necessity and that strictness has now almost vanished, the
difference in approach made to a penal statute as against any other statute still persists.
According to Lord Esher, MR, the settled rule of construction of penal sections is that ‘if there is
a reasonable interpretation which will avoid the penalty in any particular case we must adopt that
construction. If there are two reasonable constructions we must give the more lenient one.’
Interpretation of penal provisions must be in consonance with the principles underlying
fundamental rights. Any provision which visits an accused with adverse consequences without
affording him any remedy to disprove an item of evidence which stands against his innocence, is
inconsistent with the philosophy enshrined in Art 21. It was held by the Supreme Court that they
should so interpret such a provision as to dilute it to make it amenable to Art 21 of the
Constitution.

When words employed in a penal statute are not clear the principle ‘against double penalisation’
would be applied. Failure to comply with a statute may attract penalty. But only because a statute
attracts penalty for failure to comply with the statutory provisions, the same in all situations
would not call for a strict construction. An interpretation which strikes a balance between
enforcement of law and protection of valuable human right of accused (right of privacy) must be
resorted to. § 105 of the Evidence Act 1872 says that the burden to prove that the case of the
accused falls within an exception to a statutory offence lies on him. But the question whether the
defence set up by an accused is really a defence of an exception or a defence setting up non-
existence of a fact which is an ingredient of the offence to be proved by the prosecution depends
upon the construction of the particular statute. In applying and interpreting a penal statute, public
policy is also taken into consideration. In a recent case, the House of Lords held that consensual
sadomasochistic homosexual encounters which occasioned actual bodily harm to the victim were
assaults occasioning actual bodily harm, contrary to § 47 of the Offences Against the Person Act

15
1861 and unlawful wounding contrary to § 20 0f the Act, notwithstanding the victim’s consent to
the acts inflicted on him.

A statute may in certain aspects be a penal enactment and in certain others a remedial one. In
respect of those provisions which are sanctioned on the pain of punishment for a crime the rule
of strict construction in the limited sense may be applied. At any rate, as undue effort to construe
such a provision liberally to promote the beneficent purpose behind it may be effectively counter
balanced on consideration that a breach thereof leads to penal consequences.

The following are some of the propositions important in relation to strict construction of penal
statutes:--

a. If the scope of prohibitory words cover only some class of persons or some well-defined
activity, their scope cannot be extended to cover more on consideration of policy or object if the
statute.

b. Prohibitory words can be widely construed only if indicated in the statute. On the other hand if
after full consideration no indication is found the benefit of construction will be given to the
subject.

c. If the prohibitory words in their own signification bear wider meaning which also fits in with
the object or policy of the statute.

CASE LAWS –

1. Municipal Corporation of Delhi v. Laxmi Narain Tandon –

In the following case, the definition of ‘sale’ in the Prevention of Food Adulteration Act
1954 was construed in the sense having regard to the mischief intended to be remedied. It
was held that the ‘sale’ in the Act would include all commercial transactions where under
an adulterated article of food was supplied for consumption by one person to another
person. Therefore, supply or offer of food to hotelier to a customer when consolidated
charge was made for residence and other amenities including food fell within the
definition.

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 2. Virtual Soft Systems Ltd v. CIT --

The questions that arose before the Supreme Court in the case prior to the amendments
by the Finance Act 2002 with effect from 1 April 2003 were:--

a. What was meant by the words ‘in addition to any tax payable ‘in the charging §
27(1) (c) (iii)?
b. What was meant by the term ‘total income’ in Explanation 4(a) therein?

Allowing the appeals, it was held by the court that the statute crating the penalty is the
first and the last consideration and the penal provision must be construed within the term
and language of the particular statute. § 271 of the Act is a penal provision and there are
well established principles for interpretation of such a penal provision. Such a provision
has to be construed strictly and narrowly and not widely; with the object of advancing the
object and intention of the legislature.

3. Tolaram v. State of Bombay --

In the following case, Section 18 of the Bombay Rents, Hotels and Lodging Houses Rates
(Control) Act 1947 was construed. This section provided that ‘if any landlord receives
any fine, premium or other like sum or deposit or any consideration other than the
standard rent in respect of the grant, renewal or continuance of a lease of any premise,
such landlord shall be punished.’ It was held by the Supreme Court that the section did
not prohibit the taking of money by owner of an incomplete building in consideration.

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 UNIT – 5

Q.5. what do you understand by the Presumption against retrospective operation of statutes. Also
discuss its scope and limitations.

A.5.

Retrospective generally means to take a look back at events that already have taken place. The
term is used in situations where the law (statutory, civil, or regulatory) is changed, altered or
reinterpreted, affecting acts committed before the alteration. When such changes make a
previously committed lawful act unlawful in a retroactive manner, and are known as an ex-post

18
facto law or retroactive law. Retrospective operation of law therefore means application of law to
facts or actions which exist even prior to the date the said law is promulgated. It takes into its
ambit activities existing prior to the date of the new law and thus operates from a date earlier
than the date they come into effect.

It is now settled that 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 matters of
procedure. The general rule is that all statutes other than those which are merely declaratory or
which relate only to matters of procedure or of evidence are prima facie prospectively and
retrospective operation should not be given to a statute so as to affect, alter or destroy an existing
right or create a new liability or obligation unless that effect cannot be avoided without doing
violence to the language of the enactment.

If the enactment is expressed in language which is fairly capable of either interpretation, it ought
to be construed as prospective only. To sum up, it is now settled and confirmed by a Constitution
Bench of the Hon‘ble Supreme Court, that unless the language of the statute expressly so
provides it can only be construed to be prospective in its operation, the only exceptions being in
case of declaratory or classificatory amendments or statutes.

HOW THE ‘RETROSPECTIVELY’ IS APPLIED? --

In most of the major legal systems, retrospective laws which punish the accused for acts, that
were lawful when committed, are rare and not permissible. More commonly, changes
retroactively worsen the legal consequences (or status) of actions that were committed, or
relationships that existed, by bringing it into a more severe category than it was in when it was
committed; by changing the punishment or recompense prescribed, as by adding new penalties,
extending sentences, or increasing fines and damages payable; or it may alter the rules of
evidence in order to make exoneration more difficult than it would have been.

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On the other hand, retrospective laws which deal with amnesty may decriminalise certain acts
and grant pardon by reducing punishments or change possible consequences for unlawful acts
retroactively by repealing previous laws and making it no longer applicable to situations to
which it previously was, even if such situations arose before the law was repealed. A Law does
not become retrospective, only because a part of the requisite for its action is drawn from a time
antecedent to its passing.

In some cases where a new offence is created or a penalty is increased, the legislature is not
prevented from enacting an ex post facto law, but if any such law takes or impairs any vested
right acquired under an existing law or creates a new obligation, imposes a new duty or attaches
a new disability in respect to the transactions on considerations already past, such laws must in
express terms state that it is to be applicable retrospectively and the necessary implication of
such retrospectively shall be borne out from the language employed by the Legislature.

‘EX-POST FACTO LAW’-

The term Ex-Post Facto, retroactive and retrospective are synonyms in judicial use and such
terms makes the law look backs on acts which have already taken place. It changes the legal
consequences of past events as if the law had been different when the event took place
and imposes retrospectively upon acts already done or increase penalties. In relation to criminal
law, it may criminalize actions that were legal when committed or it may aggravate the crime by
bringing it into a more severe category than it was before or it may increase the punishment of a
crime by adding new penalties or extending the terms or it may alter the rules of evidence in
order to make conviction for a crime more likely than it would have been at the time of the
action for which a defendant is prosecuted.

When a law repeals a previous law, the repealed legislation no longer applies to the situations it
once did, even if such situations arose before the law was repealed. Ex post facto laws are seen
as a violation of the rule of law as it applies in a free and democratic society. Most jurisdiction
do not permit retrospective legislation to come into force, though some have suggested that judge

20
-made law is retrospective as a new precedent applies to events that occurred prior to the judicial
decision.
The principle of prohibiting the continued application of these kinds of laws is also known
as nullumcrimen, nullapoena sine praevialegepoenali, which means that there exists no crime and
no punishment without a pre -existing penal law. In some nations that follow the Westminster
system of government, such as the United Kingdom, ex post facto laws are technically possible
as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes.
However, in a nation with an entrenched bill of rights or a written constitution, ex post facto
legislation may be prohibited.

‘CRIMINAL APPLICABILITY’-

Most of the times, applicability of Ex-post facto laws to criminal liability is frowned upon. A
canon of interpretation of penal provisions does not permit penal provisions to have retrospective
effect of law. A penal character in certain offences makes certain offences punishable as offences
for the first time, usually no case is maintainable under such a circumstance as respect to acts
done before the commencement of such an act. To punish a person for his act which was not an
offence at the time of committing the act, a subsequent legislation which came into operation
after the commission of the act will per se be unconscionable besides amounting to negation of
fair play and justice.

The Supreme Court in Vijay vs. State of Maharashtra, held that penal statues which creates
new offences are always prospective, but penal statues which create new disabilities, though
ordinarily prospectively are interpreted to be retrospective in nature where there is a clear
intendment that they are to be applied to past events.

VALIDITY OF RETROSPECTIVE LAW --

The Constitution of India does not permit retrospective operation of an act or law, unless there is
a necessary implication in law stating that the law is retrospective in nature. A law which is held
retrospective but it is not specifically implied in the act would be held to be invalid or
unconstitutional. Article 20 (1) of the Indian Constitution provides for protection against

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retrospective operation of law commonly known as ex post facto law which changes the legal
consequences of actions committed before the enactment of the law. The Supreme Court has
pronounced many judgment in respect of retrospective operation of laws.

CASE LAWS --

1. Hitendra Vishnu Thakur vs. State of Maharashtra –

The Court laid down the ambit and scope of an amending Act and its retrospective
operation The Court held that a statue which affects substantive right is presumed to be
prospective in operation unless expressly made retrospective. A procedural law should
not be allowed to operate retrospectively and 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.

2. Income Tax Commissioner vs. Vatika Township Private Ltd. --

In this case it was held that a legislation cannot be presumed to be intended to have a
retrospective operation. The idea behind the rule is that a current law should govern
current activities. Law passed today cannot apply to the events of the past. If we do
something today, we do it keeping in view the law of today and in force and not
tomorrow‘s backward adjustment of it. The Constitutional Bench set out the general
principles concerning retrospectively and concluded that of the various rules guiding how
a legislation has to be interpreted, one established rule is that unless a contrary intention
appears, a legislation is presumed not to be intended to have a retrospective operation.

The Court held that every human being is entitled to arrange his affairs by relying on the
existing law and should not find that his plans have been retrospectively upset. This
principle of law is known as lexprospicit non respicit i.e. law looks forward not
backward. A retrospective legislation is contrary to the general principle that legislation

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by which the conduct of mankind is to be regulated when introduced for the first time to
deal with future acts ought not to change the character of past transactions carried on
upon the faith of the then existing law. The obvious basis of the principle against
retrospectively is the principle of fairness‘, which must be the basis of every legal rule.
Thus, legislations which modified accrued rights or which impose obligations or impose
new duties or attach a new disability have to be treated as prospective unless the
legislative intent is clearly to give the enactment a retrospective effect unless the
legislation is for purpose of supplying an obvious omission in a former legislation or to
explain a former legislation.

The Hon‘ble Court held that the rule against a retrospective construction is different. If a
legislation confers a benefit on some persons but without inflicting a corresponding
detriment on some other person or on the public generally, and where to confer such
benefit appears to have been the legislators object, then the presumption would be that
such a legislation, giving it a purposive construction, would warrant it to be given a
retrospective effect. The doctrine of fairness was held to be relevant factor to construe a
statute conferring a benefit, in the context of it to be given a retrospective operation. The
presumption against retrospective operation is not applicable to declaratory statutes
which remove doubts existing as to the common law, or the meaning or effect of any
statute. Such Acts are usually held to be retrospective. It is well settled that if a statute is
curative or merely declaratory of the previous law retrospective operation is generally
intended.

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