Morality in retrospective amendment
Rajesh Kumar
(Querist) 08 March 2008
This query is : Resolved
The parliament of our country has plenary power of legislation. Such plenary power of legislation also inludes legislation with retrospective effect. However, can this power be exercised in a cavalier manner? Should law be amended by the Parliament merely to bolster the departments case in cases against individual assessees? What is the reason of amending Section 108 of the Customs Act retrospectively? What is the reason of asking interest retrospectively, if the assessee fails to deduct TDS as per his understanding of law (vodafone case)? Should parliament give reasons for retrospective amendments? Even the governemnt and department has been delegated power to make subordinate legislations retrospectively- disgusting.
In my view power to legislate retrospectively is an extra ordinary power and must be exercised with great care and restraint. It may bring the law into disrepute and affects the sanctity of Rule of Law.
Can u imagine a situation when you paid your taxes properly as per law- and tomorrow parliament amends the law and you become a defaulter. Do u want this situation in our country?
Prakash Yedhula
(Expert) 14 March 2008
For sure, the topic needs some consideration. Post it in the forum as it is the appropriate place for discussion.
prabhakar singh
(Expert) 12 August 2012
Our's is a British's based system.The theory of ‘continuing’ sovereignty, as explained by Professor Dicey, is that there are no limits to the legislative competence of Parliament. Each Parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place. That which has been enacted by Parliament has supreme force and cannot be invalidated or changed by any other domestic or external authority.
The doctrine of the unlimited sovereignty of Parliament really began to evolve in
response to the political settlement of 1688. Prior to this, in a less secular society than exists today, examples may be found of judicial dicta suggesting that parliamentary enactments were subordinate to divine law or the law of natural reason.
Whatsoever is not consonant to the law of God or to right reason which is maintained by scripture, be it Acts of Parliament, customs, or any judicial acts of the Court, it is not the law of England (per Keble J, R v Lowe (1853) 5 St Tr 825).
Other well-known cases in which courts claimed the authority to regard legislation as void if it offended against ‘common right or reason’ or against ‘natural equity’ would include Dr Bonham’s Case (1610) 8 Co Rep 114, and Day v Savadge (1615) Hob 85.
According to Dicey and others, while legal sovereignty or the power to issue commands
in the form of laws which prevail against all others resides in Parliament, political
sovereignty – particularly with the existence of universal adult suffrage – lies with the people.This is either expressed or generally implicit in the various doctrines of the social
contract promulgated by Hobbes, Paine, Locke and others (see respectively The Leviathan (1615), The Rights of Man (1791), The Treatises of Government (1690)). The essence of the social contract is that individuals voluntarily submit themselves to the authority of government,and agree to limits on their freedom, in return for peace, order and a system of government which accords with the popular will.Should the government act in ways which abuse the trust and authority deposed in it, then ‘the people have a right to act as supreme, and continue the legislative in themselves or place it in a new form, or new hands, as they think good’.
So it goes to show that the Parliament has the power to legislate retrospectively as well as prospectively. This means
that Parliament can render illegal and impose penalties on actions which were perfectly lawful when they were committed. Also, actions which were unlawful at the time of commission,may be rendered lawful or not subject to any legal sanction or proceedings.
In R v Londonderry Justices, ex parte Hume [1972] NI 91, the Court of Appeal in
Northern Ireland ruled that the Civil Authorities (Special Powers) Act 1922 (the principal
emergency powers statute in force in Northern Ireland when the recent ‘Troubles’ began),conferred powers of arrest and detention on members of the RUC (the Northern Irish police) but not on British military personnel. This rendered illegal the arrests and detention of all those who had been taken into custody by the army – including those hundreds of suspects who had been ‘rounded-up’ in the internment operation of August 1971 and who were being held in internment camps. Within 48 hours of the decision the Westminster Parliament had enacted the Northern Ireland Act 1972. This provided that the armed forces were possessed of the necessary powers of arrest at the relevant time.The alternative would have been to release all the detainees.
Another famous example of legislative overruling of an ‘awkward’ judicial decision occurred in 1965. In Burmah Oil v Lord Advocate, above, the House of Lords held that the Crown was bound to compensate those whose property had been destroyed by
British forces during the Second World War – except where this had occurred during the
course of a battle. The decision would have resulted in a massive drain on the country’s financial resources. Retrospective parliamentary intervention followed in the form of the War Damage Act 1965. The preamble to the Act recited that its purpose was to ‘abolish rights at common law to compensation in respect of damage to property affected by the
Crown during war’. Rights which existed prior to the Act were thus extinguished.
RETROSPECTIVE LEGISLATION: which imposes criminal penalties is inconsistent with the
European Convention on Human Rights, Art 7, and with most modern conceptions of
the rule of law. It contradicts the principle that persons should only be expected to regulate their conduct according to laws which are in existence and should not be punished ‘on account of any action or omission which did not constitute a criminal offence . . .
when it was committed’ (Art 7). The constitutionally dubious nature of this type of legislation was recognised long before any of these more modern prescriptions were formulated.
Hence in Phillips v Eyre (1870) LR 6 QB 1, Willes J stated that retrospective
legislation was ‘contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought . . . to deal with future acts and ought not to change the character of past transactions carried on upon the faith of their existing law’. He also emphasized the still existing rule that a court ‘will not ascribe legislative force to new laws affecting rights unless by express words or necessary implication it appears that such
was the intention of the legislative’.
BUT :AND A BIG BUT:
Parliament is not bound by international law. Should a parliamentary enactment be
inconsistent with a rule of international law, the statute prevails. International treaties have only persuasive force in the United Kingdom. The judges assume that Parliament does not intend to legislate inconsistently with them.
HENCE:
Ambiguities or uncertainties
in English law(AS WELL AS THOSE IN INDIAN LAWS) will and should as of must usually be interpreted by the judiciary in ways which accord with international rules or morals and conscience behind,more particularly in India,where a majority of members of legislatures are themselves UNRULY,IMMORAL,AND CORRUPT WITH NO CARE FOR COUNTRY OR ITS PEOPLE.
Sudhir Kumar, Advocate
(Expert) 13 January 2022
If you feel any law applies retrospectively you can challenge in High Court.
