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Will Domestic violence act have retrospective effect?
in General Discussions
Supreme Court is examining whether to give retrospective or prospective effect to Domestic violence act 2005.What do you think?
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    A progressive piece of legislation should be always prospective and we have certain economic legislation which promote the concept of retrospective application.However in the context of domestic vilolence I welcome it.
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    Chinmoy- You have referred to retrospective effect of economic legislation. Here I may point out that retrospective effect is given only to clear doubts when a piece of legislation is being interpreted in a manner other than that intended by legislature. In this context, the recent amendment to service tax on rent of commercial property refers.
    Normally, a piece of legislation must be given only prospective effect. Domestic violence Act should also be given only prospectiuve effect. However, even before this act was inioperation, the provisions in Indian Penal Code may suffice to bring culprits to books.

    G. K. Ajmani Tax consultant
    http://gkajmani-mystraythoughts.blogspot.com/

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    Ofcourse it will applicable only from retrospective effect if it is so provided in the act.
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    The Act takes affect from the date of promulgation. Retrospective effect should not be given. It is not fair to give retrospective affect to a legislation as this will be unfair to the affected people.

    G. K. Ajmani Tax consultant
    http://gkajmani-mystraythoughts.blogspot.com/

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    gulshan kumar ajmani wrote:
    [quote]The Act takes affect from the date of promulgation. Retrospective effect should not be given. It is not fair to give retrospective affect to a legislation as this will be unfair to the affected people.[/quote]

    I agree to this view.
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    Gulshan,

    The power to apply some provisions and rules by the board is a substantive one.To illustrate my point I refer to Section 295 of the Income Tax Act,especially its sub section (4) whic is an enabling provision to give retrospective effect to any rule by the board.I can cite various case laws too where the courts in India upheld the validity of such an exercise.
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    Chinmoy- The rules framed by the Board are a delegated legislation and are meant to implement the main act. an act passed by parliament is main legislation. Please elucidate if any amendment to Income tax Act itself can be given retrospective effect.

    Domestic violence Act is main legislation passed by parliament. This is different from rules framed under the main act. So, this should not be retrospectively implemented.

    G. K. Ajmani Tax consultant
    http://gkajmani-mystraythoughts.blogspot.com/

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    Gulshan,it may be a delgated power but not a subordinate one as I have referred to the provisions of the main act and whoever exercises it,to my mind, is not material in this context.Now I am going to refer a few other sections of the main act which came under this retrospective applicability.The Explanation I of Section to 17(2) is a case in point. The retrospective period was extended from 1.4.2002.Similarly clause va of section 17(1) was inserted by the Taxation Laws (Amendment)Act,1984 with retrospective effect from April 1,1978.I hope I have clarified my position clearly.
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    Chinmoy- You have again referred to explanation 1 of Section 17(2). an explanation is not main provision. It is only clarificatory. What I want to stress that the substantive or main law introduced for the first tie cannot have retrospective effect. when there is doubt, clarification may be given retrospective effect i.e. from date of enactment of main provision.

    I request please think over my view and give your considered opinion.

    Thanks for carefully reading my post and giving response.

    G. K. Ajmani Tax consultant
    http://gkajmani-mystraythoughts.blogspot.com/

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    Here I think we have reached a point to confirm our disagreement on this point.Thanks for your views.
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