Case: Zile Singh Vs. State Of Haryana

substituted. 24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision. 25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. vs. State of U.P. and Ors - (2002) 2 SCC 645, State of Rajasthan vs. Mangilal Pindwal - (1996) 5 SCC 60, Koteswar Vittal Kamath vs. K. Rangappa Baliga and Co. - (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar vs. S. Michael & ors. - AIR 1963 SC 933 . In West U.P. Sugar Mills Association and Ors.s case (supra) a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwals case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswars case (supra) a three-Judges Bench of this Court emphasized the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. 26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) of sub-section (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the proviso - if not read down - would have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act. 27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expression - for the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. According to the appellant, the disqualification imposed by Section 13A (1)(c) of the First Amendment remained in operation only for a period of one year and would have in ordinary course ceased to operate on the expiry of the period of one year from April 5, 1994. The citizens were justified in arranging their affairs including the enlargement of their families keeping in view the provision of law as it stood. However, the Second Amendment Act effective from 14.10.1994 made a difference. On that day, the Legislature specifically provided that a person having more than two children on or after expiry of one year shall stand disqualified. This period of one year, in the submission of the appellant, should be calculated from 4.10.1994 and not 5.4.1994 and if that be done the birth of the child on 13.8.1995 would not attract the disqualification13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. 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 nova constitutio futuris formam imponere debet non praeteritisa new law ought to regulate what is to follow, not the past15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal a privilege which did not amount to accrued right (p.392)The retrospectivity is liable to be decided on a few touchstones such as: (1) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) ofn (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the provisoif not read downwould have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expressionfor the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994.