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01/09/2022 - Judiciary

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September 01, 2022

In Benami property cases, the Supreme Court has wisely placed restrictions on retrospective penal action in a civil law. Explain (200 Words)

Refer - Business Line

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IAS Parliament 2 years


·        The Supreme Court’s unambiguous assertion of the Constitutional principle of prohibiting retrospective criminal laws has to be welcomed.

·        The judgement provides relief to thousands of property-holders like the respondent company in the present case which faced criminal prosecution for transactions that were denominated as “benami” prior to 2016.

·        The presumption was that Article 20 barring retrospective criminal legislation would not influence these prosecutions because the law was not being applied retrospectively; it already existed in the statute book.

·        The government accordingly argued before the Supreme Court that the 2016 Act was not substantive but only procedural in operationalising the 1988 Act.

·        But the Court rightly gauged the problem as “a tussle between the normative (subjective opinion) and positivist (hypothesis that can be empirically tested) positions regarding the nature of a crime and punishment”.

·        A punitive provision cannot be couched as a civil provision to bypass the mandate under Article 20(1) of the Constitution which follows the settled legal principle that “what cannot be done directly, cannot be done indirectly”.

·        The Court ruled against retrospective application of the confiscatory provision in Section 5, but left the question of its prospective application open. Yet, the provision is suspect.

·        In sum, crucial Constitutional boundaries have been spelt out by the apex court as a reminder to lawmakers.


Kindly review

IAS Parliament 2 years

Try to provide a comprehensive conclusion. Keep Writing.

Aravind R 2 years

Kindly review this mam/sir

IAS Parliament 2 years

Good attempt. Keep Writing.

K. V. A 2 years

Pls review

IAS Parliament 2 years

Good attempt. Keep Writing.



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