ARMY INSTITUTE OF LAW, MOHALI

PROJECT ON “Operation of statutes dealing with procedures and

succession”

Project Submission in the Partial Fulfillment of Periodic Evaluation of IOS

Submission To: Submitted By:

Dr KP SINGH SANJEEV YADAV

FACULTY: 10th SEMESTER B.A. LL.B.

IOS ROLL NO: - 1716

 ACKNOWLEDGEMENT

This project consumed a huge amount of work, research and dedication. I would like to express
my deepest appreciation to all those who provided me with the possibility to complete this
project work.

Sincere gratitude to our Professor, whose superior knowledge and contribution in stimulating
suggestions helped me to coordinate my full effort in achieving the project.

Furthermore, I would also like to acknowledge with much appreciation the crucial role of
management of Army Institute of Law, who gave the permission to use all required equipment
and necessary material to complete this task of research.

SANJEEV YADAV

Roll No. – 1716

Meaning of operation of statute:

Normally a central law comes into force from the date on which it receives President Assent.
Similarly a state law comes into force on the date on which the Governor gives his assent. Giving
effect to an enactment is called "operation of statute" and the day from the statute becomes
operative is called "commencement of statute”.

Operations of Statutes:

There is a legal maxim; ‘A new law ought to be prospective, not retrospective in its operations.’
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.

Types of Operation of Statues:

The operation of statutes is of two types, i.e. the Prospective operation which seeks to govern
current activities, events & the Retrospective operation of statutes which seeks to govern past
acts, events as to impair an existing right or obligation. In a broad sense it may be right to say
that statute has enactment retrospective operation when it purports to touch facts or events which
took place before the enactment come in to force it is sometime used in different sense when
vested right are sought to be affected . It is well settled that legislature has plenary powers to
legislate prospectively as well as retrospectively.

The General Rule as to a Statute:

The general rule as to every statute is prima facie prospective unless it is, specified to have
retrospective operation either-
 Expressly mentioned
Or mentioned by necessary implications

Prospective Operation of Statutes

The dictionary meaning of the word prospective with reference to statutes shows that it is
concerned with or applying the laws in future or atleast from the date of commencement of the
statute.

It is to be noted that the Doctrine of Prospective overruling is evolved by the Supreme Court for
the first time in India in I.C. Golak Nath Vs. State of Punjab A.I.R. 1967 SC 1643. In this case
Supreme Court held that the Parliament had no power to amend the fundamental rights. Chief
Justice Subba Rao posed the questions as to when Parliament could not affect fundamental rights
by enacting a bill under its ordinary legislative process even unanimously, how could it then
abrogate a fundamental right with only a two third majority and while amendment of less
significant Articles of the Constitution require ratification by a majority of States of the Union,
how could a fundamental right be amended without this requirement being fulfilled. The learned
judge was of the view that the word 'law' Art. 13 (2) means both ordinary law as well as
constitutional law. Consequently, the state was not empowered to make any constitutional
amendment which takes away or abridges fundamental right as 'law' includes 'amendment' as
well. Thus, while holding that the Parliament was not empowered to amend fundamental rights,
the five learned judges jointly declared that the principle would operate only in future and it had
no retrospective effect. Therefore, the name 'prospective overruling'. The effect of the decision
was that all amendments made with respect to the fundamental rights till the day of the decision
in the case would continue to remain valid and effective, and after that date the Parliament would
have no power to amend any of the fundamental rights contained in Part III of the Constitution.

Restrictions on the Applications of the Doctrine of Prospective Overruling:

The learned judges imposed following three restrictions on the application of this principle

a. That the principle of prospective overruling would for the time being used in constitutional
matters only;

b. That the Supreme Court alone, and no other court, would have the authority to apply the
principle; and

c. The scope of the prospectively to be imposed is a matter of discretion for the Supreme Court
which is to be moulded in accordance with the justice of the cause or matter before it.
Thus, the principle of prospective overruling recognises the role of the Supreme Court with
respect to both law and policy making. The area of application of this principle is also quit e
narrow in the sense that it has been applied only in respect of constitutional amendment. The
principle also envisages that an overruling decision shall not affect intermediate transactions
made on the basis of the overruled decision but will apply to future matters. In other words, a law
declared invalid may not have any repercussions on the transactions arid vested rights already
long settled in the past but may operate only with respect to transactions and rights likely to
come up in future, that is to say, after the judicial invalidation. While retrospective overruling
could often result to harsh results when vested rights are interfered overruling could often result
to harsh results when vested rights are interfered with or when actions have already been taken in
accordance with the then existing rules, prospective overruling does away with such hardships.

Reasons for the Evolution of the doctrine:

a) The power of Parliament to amend the fundamental rights, and the First and the Seventeenth
Amendments specifically, had been upheld previously by the Supreme Court in Shankari Prasad
Vs. Union of India, A.I.R. 1951 SC 458, and Sajjan Singh Vs. State of Rajasthan, AIR. 1965 SC
845.

b) During 1950 to 1967, a large body of legislation had been enacted bringing about an agrarian
revolution in India.

Retrospective Operation of Statutes:

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
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.
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
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.

In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, this Court laid down
the ambit and scope of an amending Act and its retrospective operation as follows:

 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.

 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.

 Every litigant has a vested right in substantive law but no such right exists in procedural
law.

 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.

 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.
Statutes dealing with procedure - In contrast to statutes dealing with substantive rights, statutes
dealing with merely matters of procedure are presumed to retrospective unless such a
construction is textually inadmissible. According to Lord Denning:

"The rule that an Act of Parliament is not be given retrospective effect applies only to statutes
which affect vested rights. It does not apply to statutes which only alter the form of procedure or
the admissibility of evidence, or the effect which the courts give to evidence".

Operation of Statues dealing in Procedures:

Statutes Regulating Succession Statutes enacted for regulating succession are not applicable to
already open succession. Such laws have only prospective effect. The law is applicable only for
successions that are to take place after the statute has been enacted/ those successions that have
opened after the statute has been enacted.

In a leading case law of Lala Dunichand v. Anarkali (1946), it was held that the Hindu Law of
Inheritance (Amendment), 1929 would be applicable where a female heir died even though the
male heir whom she succeeded had died prior to the commencement of the Act. The Act was
not given a retrospective effect as it would deprive person from the right that had already been
vested in him.

However, there was considerable ambiguity on whether the Hindu Succession (Amendment)
Act, 2005 providing to daughters, the same rights in coparcenary properties as the sons, was
retrospectively applicable or prospectively applicable. When the occasion presented itself before
a three member bench of the Hon'ble Supreme Court in Vineeta Sharma v. Rakesh Sharma &
Ors., the Apex Court finally concluded that the verdict in the Prakash v. Phulavati, did not
interpret the law correctly and that the 2005 amendment act was applicable retroactively, thus
laying to rest an enduring controversy regarding the date of conferment of the benefits of the
2005 amendment.