Classification Of Statute As Substantive Or Procedural Doesn’t Necessarily Determine Whether It May Have A Retrospective Operation: Supreme Court

The Supreme Court held that the classification of a statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation.

The Court held thus in a batch of Writ Petitions and one Interlocutory Application involving common legal question i.e., the application of the age-restrictions on ‘intending couples’ under Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.

The two-Judge Bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan observed, “The classification of a statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. For example, a statute of limitation is generally regarded as procedural but if its application to a past cause of action has the effect of reviving or extinguishing a right of suit, such an operation cannot be said to be merely procedural. For these reasons the rule against retrospectivity has also been avoiding the classification of statutes into substantive and procedural and avoiding use of words like existing or vested.”

The Bench reiterated that in contrast to statutes dealing with substantive rights, statutes dealing merely with matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible.

Senior Advocates Pinky Anand and Mohini Priya appeared on behalf of the Petitioners, while Additional Solicitor General (ASG) Aishwarya Bhati appeared on behalf of the Respondents.

Background

The common grievance of the Petitioners and Applicants was with regard to the upper age limit fixed for the intending couple, inasmuch as the female cannot be over and above 50 years of age and the male cannot be over and above 55 years of age.

Issue for Consideration

The question that arose for consideration before the Court was whether the age-restrictions under Section 4(iii)(c)(I) should be applied to intending couple, all of whom had commenced the surrogacy process, to the extent of having their embryos frozen, before the enforcement of the Act.

Court’s Observations

The Supreme Court after hearing the contentions of the counsel, noted, “… the law does not impose any age restrictions on couples who wish to conceive and bear children naturally. In this regard, prior to the enforcement of the Act, intending couple Nos.1 to 3 were on the same footing as couples who wished to conceive naturally. But, the stark distinction is that owing to medical reasons/disadvantages, they could not have children naturally. Having exercised this parity in freedom by commencing the surrogacy process, can it be said that they can now be denied the continued exercise of this freedom only because of the age bar under the Act? We are not inclined to believe so.”

The Court clarified that it is not questioning the wisdom of the Parliament in its prescription of age-limits under the Act, or passing a Judgment on its validity; rather, the cases are limited to couples who commenced the surrogacy process before the enforcement of the Act, and it limit its observations to the same.

“Concerns over parenting and gamete quality, while possibly being legitimate concerns for lawmakers (though we do not express any opinion on the same), are not compelling reasons for retrospective application of the Act, especially since the State allows some categories of couples (those who wish to conceive naturally) to procreate despite these concerns or for that matter to opt for adoption as per personal law”, it added.

The Court agreed with the submission that the right to surrogacy vested in intending couples prior to the enforcement of the Act, it was a constitutionally recognized right which continues to be so recognized but subject to reasonable restrictions with a view to obviate exploitation of surrogate mothers through a process of commercial surrogacy.

“Therefore, such a constitutional right cannot be taken away retrospectively from them on account of their age, without an express intention to do so under the Act. … the right to make autonomous decisions regarding the age at which one wished to pursue surrogacy, had vested in intending couple Nos.1 to 3”, it added.

The Court was of the view that the right to decide to bear children through surrogacy despite their ages, is one that can legitimately be considered to have vested in intending couples herein prior to the coming into force of the Act, following their decision to undertake the surrogacy procedure.

“… our decision is restricted to intending couple Nos.1 to 3, who have been prevented from pursuing surrogacy solely due to their age, despite having commenced the surrogacy procedure before the enforcement of the Act. We make it clear that have not considered the vires of the age fixation under Section 4 for intending couples in this order”, it again clarified.

The Court emphasised that there is a need to strike a balance between the provision regarding the age restriction, the transitional provision (Section 53 of the Act) and the rights of the intending couples to have a surrogate child when they had commenced the surrogacy procedure prior to the commencement of the Act and were in the midst of the said procedure when the Act has placed age restrictions on them.

“In the instant case, the intending couples were a step away from involving the surrogate mother in the process. … Therefore, we deem it appropriate to observe that the ‘commencement’ of the surrogacy process for the limited purpose of determining when the age-limits under the Act must be applied prospectively and not retrospectively takes place after the intending couple has completed the extraction and fertilisation of gametes and has frozen the embryo with an intention to and for the purposes of, transfer to the womb of the surrogate mother”, it further observed.

The Court remarked that a right in existence at the passing of the statute cannot be impacted by its provisions retrospectively in the absence of an express enactment or necessary intendment and thus, any statute which takes away or impairs vested rights acquired under existing laws or, inter alia, attaches a new disability in respect of transaction already passed, must be presumed to be intended not to have a retrospective effect.

“Therefore, a statute cannot be construed to have a retrospective operation than what the language desires it to be necessary. Further, a statute need not have an express provision to make it retrospective as by necessary implication a statute can have a retrospective operation depending on the use of legal fiction or by necessary implication”, it added.

The Court took note of the principle that “one does not expect rights conferred by the statute to be destroyed by events which took place before it was passed”.

The Court also said that the provision cannot apply retrospectively so as to deny the certification to the intending couples in the present cases on the premise that on the date of issuance of certification they had crossed the age bar.

“This is because there was no age restriction when the intending couples commenced the surrogacy procedure, the Act has been enforced when the intending couple were in the midst of the procedure, at a crucial phase i.e., at the stage of creation of embryos and freezing the same”, it also noted.

Conclusion

Moreover, the Court observed that the creation of embryos and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples i.e., intending couples, in the instant cases.

“… the age bar does not apply to intending couples such as the ones we are considering in the present cases”, it held.

The Court further held that if an intending couple had –

(i) commenced the surrogacy procedure prior to the commencement of the Act i.e., 25.01.2022; and

(ii) were at the stage of creation of embryos and freezing after extraction of gametes; and

(iii) on the threshold of transfer of embryos to the uterus of the surrogate mother

The age restriction under Section 4(iii)(c)(I) of the Act would not apply.

“The competent authority, on being satisfied about the aforesaid conditions (i), (ii) and (iii) above shall issue the certification provided Rule 14 of the Rules are satisfied by the intending couples”, it directed.

The Court, therefore, concluded that Section 4(iii)(c)(I) does not have retrospective operation and would not apply to the Petitioners and Applicants who are the intending couples.

Justice Viswanathan’s Concurrent Opinion

While lending concurrence, Justice K.V. Viswanathan observed, “Anushka Rengunthwar (supra) was a case where the students had studied in India, and when they were all set to write the exam to qualify as doctors and to compete for the seats similar to Indian citizens, a new disability intervened. For those who commenced the process, the Court granted the relief by interpreting 04.03.2021 notification prospectively and recognizing certain rights to have inhered to the students in view of the legal regime in place before the notification of 04.03.2021.”

He said that the purpose of this Judgment is to reinforce the aspect that by the fertilization of the embryo prior to 25.01.2022, certain rights inhered in the intending couple and the Surrogacy (Regulation) Act, 2021 does not divest them of those rights.

Accordingly, the Apex Court exempted the intending couples from seeking certification on the qualifying age for the purpose of continuing the surrogacy procedure provided they satisfy the other conditions under the Act and the rules made thereunder.

Cause Title- Arun Muthuvel v. Union of India & Others (Neutral Citation: 2025 INSC 1209)

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