Understanding Curative Legislation

Profile of the Author: Sakshi Srivastav is a law student pursuing B.A.LL.B (Hons) from Rajiv Gandhi National University of Law, Punjab.

Introduction

As has been aptly described by an old saying “to err is human”, mistakes are an inevitable part of human lives. No matter how systematically a person tries to lead his life, mistakes are bound to take place. Things, however, don’t entirely end at these mistakes as there goes another old saying that “Humans learn from their mistakes”. We naturally make mistakes, and in the same natural way, we realise them and take corrective steps to ameliorate their effect.

The same line of thought can also be extended towards the governments. A Government, conferred with the responsibility to run a Nation, must act extremely carefully in carrying out its operations. However, even after exercising care and caution, a Government may make mistakes (it does make mistakes) as it is but a human-run organisation. In that case, does the Government have any measure to correct its errors? The answer is YES. Through the American concept of Curative Legislation, governments have been provided with a path for correcting their mistakes and doing what they should have done in the first instance.

What is Curative Legislation?

Curative Legislation, as the term suggests, is a form of legislation enacted by the Government to cure the flaws in any of its actions.

Curative Legislation has been defined as any Statute enacted to give legal effect to a past action or transaction which was ineffective for its failure to comply with some requirement of the law. [1] In the case of Johnson v. Richardson [2], it was said that any action being validated by a statute must be such that had there been no irregularity or technicality, it would have been considered valid.

From the aforesaid, we can surmise that Curative Statutes are enacted to give validity/legal effect to an action, legal proceeding or, instrument that was invalid due to a defect or silence in an existing statute. Putting the pieces together, it can be said that cases having irregularity in an existing statute, an otherwise justified and valid action is rendered invalid, the Government may step in to enact legislation to cure the law of such defect, thereby giving legal effect to such action. The basic premise behind giving validity to any action, legal proceeding, or instrument is that the previous law should have given them sanctity in the first place. Consequently, as a corrective measure, Curative Legislation is enacted to give validity to an action that must have been incorporated as valid in the first place.

For illustration, Coon v. Board of Public Instruction of Okaloosa County [3] is a case in point. In this case, a petition was filed at a local school board for the creation of a Tax-area. In the hearing, it was decided that elections would take place to approve the same. However, due to a lack of participant voters, the election failed. Following this, the school-board declared a second election. This election was declared successful and the creation of a tax-area was approved. However, due to a requirement as per some existing legislation, the election petition filed at the school-board had to have 10% of the total inhabitants of the city as its signatories. But in the time between the filing of the petition and the second election, the population of the city had drastically increased; placing the number of signatories in the petition below the required number. The election, therefore, was challenged on this ground. Meanwhile, the Florida State legislature made changes in the existing legislation to give effect to the election. The Court declared the new legislation to be a valid curative law and maintained that the procedural requirement mentioned in the previous statute was not necessary. It observed, “By a curative statute the Legislature has the power to ratify, validate and confirm act or proceeding which it could have authorised in the first place” [4].

It is important to note that Curative legislation, which is essentially an American concept, is one of the many forms of legislation and thus follows the general procedure that a legislative enactment has to go through. There is no specific provision about the same anywhere.

The Essentials of a Curative Legislation

For any Curative Legislation to be valid, the following requirements must be met:

Firstly, since the primary purpose of a Curative Statute is to give legal validity to an action that has taken place in the past, such statutes must have a retrospective application [5]. A Curative Statute without retrospective application would be ineffective as it would only mean preventing an irregularity in a statute from making an otherwise just action invalid, for future purposes. But so far as an already occurred action is concerned, it would still remain invalid, defeating the very purpose for which the correction had taken place.

Secondly, Curative Legislation can only deal with those actions that have procedural irregularities [6] and not substantive. The reason behind this condition is the fact that unlike substantive law, a procedural law does not define the rights, duties, and liabilities of a person; and Curative Legislation or for that matter any legislation does not have the power to take away the rights of the people retrospectively as per protection against Ex post facto laws provided under Article 1 Section 9 [7] of the American Constitution and Article 20(1) [8] of the Indian Constitution, respectively.

Thirdly, an action being validated by a Curative Legislation must only display small procedural irregularities and not be void or constitutionally invalid per se. It is required that apart from slight technicalities vis-a-vis a Statute; an irregular action must be valid in other respects. Curative Legislation, dealing with an action that does not conform to the aforesaid, would be declared invalid.

Fourthly and most importantly, the legislative body enacting the curative legislation must have the authority to enact such legislation. [9]

Conclusion

It must be kept in mind that the basic purpose of Curative Legislation is to take corrective steps against a provision that may be flawed and irregular and to consequently validate an action or instrument affected by the same. The motive is thus to correct a mistake and not to take undue advantage of this form of legislation for validating every irregular administrative action. To check the same, courts always determine the validity of a Curative Legislation based on a set of requirements.

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FAQs

Q. Discuss the relevance of Curative Legislation under BK Pavitra`s case.

Ans. In B.K. Pavitra II, the Supreme Court bench of Justices U.U. Lalit and D.Y. Chandrachud held on May 10 that the state legislature, by enacting the 2018 Act, took care to remedy the underlying cause which led to a declaration of invalidity of the 2002 Act. Curative legislation is constitutionally permissible and is not an encroachment on judicial power, the bench held.

References

[1] Carle v. Gehl, 193 Ark. 1061, 104 S.W. 2d 445 (1937).

[2] Johnson v. Richardson, 44 Ark. 365 (1885).

[3] Coon v. Board of Public Instruction of Okaloosa County, 203 So. 2d 497.

[4] Ibid.

[5] The Effect of Curative Legislation, 22 COLUMBIA L.R. 458, 459 (1922) https://www.jstor.org/stable/1112495.

[6] Laura K. Wendell, Mistakes Happen: Fixing Them Through Curative Legislation, 37 STETSON L.R. 459, 463 (2006).

[7] U.S. CONST. art. I, § IX.

[8] INDIA CONST. art.20, cl.1.

[9] Coon v. Board of Public Instruction of Okaloosa County, 203 So. 2d 498.