Declaratory, Validating, Amending, Codifying and Consolidating Statutes

Some statutes are made not to create new law but to clarify, cure, change, codify or collect existing law. Each kind carries its own rule of construction. Declaratory and validating statutes usually reach back in time; amending statutes are read into the Acts they amend; codifying statutes are read on their own terms; consolidating statutes are presumed not to change the law. Validating statutes raise a constitutional question of their own: how far can the legislature undo a court's judgment? This note covers all five.

1. The Five Kinds at a Glance

Figure 1: Purpose and rule of construction

2. Declaratory Statutes

• Purpose. To remove doubt about the meaning of the existing law or to correct a judicial interpretation the legislature considers wrong; often introduced with words such as 'for the removal of doubts, it is hereby declared'.
• Retrospective. A declaratory or clarificatory law is ordinarily retrospective, since it states what the law always was. In CIT v Vatika Township (2014) the Constitution Bench accepted this, but held that a provision imposing a new burden is not clarificatory merely because it is so labelled.
• Test. The court looks at the substance of the change, not the label: a real change in the law is prospective unless clearly made retrospective.

3. Validating Statutes

Figure 2: How a valid validating law works

• Purpose. To validate acts, levies or proceedings that a court has held invalid, usually with retrospective effect.
• Prithvi Cotton Mills (1969). The Supreme Court held that a validating law is effective if it removes the cause of invalidity, so that the court, applying the law as amended, could not have given the earlier decision; the legislature cannot simply declare a judgment ineffective.
• Indian Aluminium (1996). The Court summarised the conditions: the legislature must have competence over the subject; it may change the basis of the judgment retrospectively; but it cannot overrule a judgment directly or set aside a court's decision, as that would breach the separation of powers.
• Mandamus. A validating law cannot simply nullify a final judgment or mandamus between the parties without changing the law on which it rests.

4. Amending Statutes

• Read into the parent Act. An amendment becomes part of the Act it amends, which is then read as amended.
• Substitution. Substitution of a provision operates as repeal of the old and enactment of the new, from the date of substitution unless otherwise stated.
• Prospective. An amending Act is presumed prospective, unless it is declaratory or expressly retrospective (Topic 20)
• Later Act as aid. An amendment may throw light on the meaning of the original provision where that was ambiguous, though it cannot change a clear earlier meaning by implication (Topic 13)

5. Codifying and Consolidating Statutes

• Codifying statutes. A code states exhaustively the whole law on a subject. In Bank of England v Vagliano Brothers (1891) Lord Herschell held that the proper course is to examine the language of the code itself and ask its natural meaning, not to start from the previous law and assume the code was meant to preserve it; the earlier law may be consulted only where the code is doubtful.
• Indian codes. The Indian Contract Act, the Sale of Goods Act and the Transfer of Property Act are codifying statutes, and Indian courts read them on their own terms.
• Consolidating statutes. A consolidating Act collects existing statutory provisions into one Act. It is presumed not to change the law, and where its words are doubtful the court may look at the earlier enactments it consolidates.

6. Frequently Asked Questions

Can the legislature overrule a judgment of a court?

Not directly. The legislature may enact a validating law that removes the basis of a judgment by changing the law on which it rested, even retrospectively, so that the court could not have reached the same decision under the amended law. But it cannot simply declare a judgment ineffective or set aside a decision between parties, as held in Prithvi Cotton Mills (1969) and Indian Aluminium (1996).

How is a codifying statute interpreted?

By examining the language of the code itself and giving it its natural meaning. In Bank of England v Vagliano Brothers (1891), Lord Herschell held that a court should not begin by asking what the previous law was and assume the code was meant to preserve it. The earlier law may be consulted only where the code's language is doubtful or has acquired a technical meaning.

Is a declaratory statute retrospective?

Ordinarily yes, because it declares what the law always was. But the court looks at substance, not labels. In CIT v Vatika Township (2014) the Supreme Court held that an amendment that in substance imposes a new burden is prospective, even if described as clarificatory, unless the legislature clearly makes it retrospective.

7. Related Topics

• Topic 20: Commencement and Retrospective Operation. The temporal rules these statutes engage.
• Topic 22: Repeal of Statutes. Repeal, re-enactment and savings.