This article on ‘Ex Post Facto Laws in India’ has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. This author in this article mainly discusses “The Ex Post Facto laws in India under article 20(1) of the Indian Constitution”.

Introduction

Demonetization was a big shock for the whole nation in 2016 as Rs.500 and 1000 currency notes ceased to be a legal tender as a prevailing currency in India. Just like the currency notes, an act that was legal at one time is suddenly no longer legal and instead is illegal and prohibited by law. These changing circumstances have led to wrongful punishment of many individuals who did not actually commit any offense that was punishable by law and according to their knowledge, that act was actually legal. These laws which criminalize any act or increase the punishment of any offense are called ex post facto laws and it has been mentioned in Article 20(1) of the Indian Constitution (1). Ex post facto laws can either label an act as an offense with retrospective effect; or increase the punishment that is prescribed for an act committed in the past. It is important to protect the citizens of India from being punished for an act done, which was legal when it was done but was criminalized or the punishment for that act has been enhanced by any act that was formulated later on. The prohibitions under Article 20(1) is only for a conviction or sentence, but not trial procedure. The objection does not apply to a change of procedure or of court. The gravity of this concept can directly affect the society at large and hence this article discusses the origin and the multidimensional aspects of the Ex Post Facto laws and the role it has played in our legal system, as it has in the isolated systems all around the globe. Also, this article aims to shed light on the principle of ex post facto laws so that there is no grave injustice, by way of violation of fundamental rights, is done.

In order to prevent such a situation, the Indian Courts have safeguarded the interests of the general public. Protection against an ex post facto law applies only to criminal laws. Laws that involve fee payments or taxes payments are civil in nature rather than criminal. Thus these retrospective consequences do not infringe governmental authority and are constitutional. Such laws are often considered as inequitable and abhorrent to the notions of justice and therefore, there are safeguards against such laws. This article states especially about the Indian scenario in providing protection against ex post facto laws by providing a set of provisions, statutes and judicial pronouncements prevailing over the matter of Ex post facto laws.  

Derivation of Ex Post Facto laws  

Ex post facto law is derived from the Latin word “ex post facto” which means ‘out of the aftermath’, it is a law that has a retrospective consequence on any act committed, which is not prohibited by law, before the enactment of a preceding law.

The Nehru committee appointed by the All Party Conference in its report (1928) incorporated a provision for the enumeration of such rights recommending their adoption as part of the future constitution of India and one of the rights recommended by it was protection in respect of punishment under ex post facto laws.

The draft constitution of India proposed by Dr. B.R. Ambedkar and the constitutional advisor Sri B.N. Rao shows that the framers of our constitution while drafting Article 20, had the provisions of the U.S. Constitution in their mind. Section 9 of Article 1 of the U.S. Constitution states that no bill of attainder or ex post facto law shall be permitted to pass and Section 10 states that no state shall pass any bill or ex post facto law.

The term Ex post facto law was explained by the Supreme Court of U.S. in the 1990s in the case of Calder v. Bull (2), it was held that ex post facto law is any law that criminalizes any action which was done before the enactment of that statute or that aggravates any said offense, or that prescribes a greater punishment than the prevailing law provides for that act.

Chief Justice Marshall opined on ex post facto law in the case of Fletcher v. Peck (3), “one which renders an act punishable in any manner in which it was not punishable when it was committed”. This definition of ex post facto law has been widely used since.

Article 7 of the European Convention of Human Rights also states that no person shall be punished for any act which was not punishable by the law which was governing the citizens at the time of the commission of the act. It is upheld by Article 15(1) of the United Nations Covenant on Civil and Political Rights (ICCPR) and Article 11, paragraph 2 of the Universal Declaration of Human Rights.

In criminal law, Ex post facto laws may criminalize actions that were not punishable when committed although it may aggravate any offense by bringing it into a more serious offense category, which ex post facto law than it was in a particular category at the time it was committed earlier. Ex post facto may cause a change in the consequence of committing an offense. Due to the addition of new punishments and new rules to govern a particular offense. This principle may also cause a change in the rules of evidence to make a conviction for a crime easier than it would have been when the offense was committed.

The application of Ex post facto laws have been interpreted as it is against constitutional guarantees. In the case of Beazell vs. Ohio, it has been cleared that any statute which punishes as a crime a previous act which was innocent when committed violates the constitutional guarantee.

Any law if changed and it affects the substantial rights, it can be considered as an ex post facto law even if the statute takes a procedural form. This was stated in the case of Winston vs. State. In the United Kingdom, the courts interpret the penal laws in a manner, such that they do not have ex post facto law operation on the principle that the parliament would not pass retrospective criminal legislation. Waddington vs. Miah, the House of Lords interpreted the Immigration Act 1971 which denied the retrospective effect of law by implementing Article 7 of ECHR which guarantees freedom from ex post facto law.

The mechanism before enacting a law is that it will have effect ex nune which translates to any ‘situation subsequent to the enforcement of that enactment’. The Corpus Juris Civilis of Justinian proclaimed a strong presumption against the retrospective application of laws. Bracton introduced the principle into English Law, and Coke and Blackstone gave currency to it, and the principle is known to the people as a basic rule of statutory construction. In the United States, ex post facto laws in criminal cases and retrospective state laws impairing the obligation of contracts are expressly forbidden by the terms of the federal constitution.

Provisions relating to Ex Post Facto laws

A literal interpretation of Article – 20(1) of the Indian Constitution would mean that the safeguards provided under this article are given against conviction for an act or omission which was not an offense under the law that existed at the time of the commission and against any increased punishment for the same act for which the punishment was different at the time of the commission of the act. It is usually claimed that Article – 20(1) invalidates ex post facto law.

The constitution is a dynamic document and should be interpreted keeping in mind its wide scope. In the case of State of West Bengal vs. Anwar Ali Sarkar, Justice Vivian Bose has observed that “I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?”     

It is usually claimed that Article – 20 (1) invalidated ex post facto law. The landmark case of Keshavanan Madhavan Menon vs. the State of Bombay, it is stated that fundamental rights that are granted have no retrospective effect and impact and that the invalidating of the laws through the doctrine of eclipse which is present in Article – 13 (1) which also deals with the future implementation of the law. An individual accused of having committed of an offense has no fundamental right to trial by a particular procedure, except in so far as any constitutional objection by way of violation of any other fundamental rights. “Law in force” does not include retrospective laws and commonly called ex post facto laws, this was opined in the case of West Ramnad Electronic distribution Co. Ltd. vs. the State of Madras.

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Safeguards for the general public

The duty of the Indian courts on moral grounds to ex post facto law is not founded on constitutional scrutiny but on the most fundamental demand of the rule of law that a person is subject and answerable only to an established and already enacted law.

Part III of the Indian Constitution guarantees Fundamental Rights to every citizen so that they can lead a peaceful and successful life. These Fundamental Rights include personal rights similar to most liberal democracies, such as the right to life, right to equality, freedom of speech and expression and etc. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to the discretion and legal knowledge of the judiciary. The Fundamental Rights are defined as basic human rights and freedoms which every Indian citizen has the right to enjoy. If any person is arrested for committing an act which was not illegal at the time of commission of that particular act, it comes under right to personal liberty and right to live life with dignity, Article – 20(1) protects any citizen against this ex post facto law so that no citizen is punished for a term more than what is laid down in the law. No law is to be made retrospectively and the act should be committed after the law stating that act is enacted completely. Article 20(1) of the Indian constitution provides necessary protection against ex post facto law.

Two folds of Article 20(1) against ex post facto laws

Article 20(1) is divided into two parts. According to the first part, no person is to be convicted for an offense except for an act that is illegal or prohibited by the already enacted law at the time of omission of that particular act. A person is to be punished and prosecuted for violating any law which is enforced when the act is committed thus justifying the words “law in force” which is used in Article 20(1). A law which is enacted after the commission of the act means that the act which is done before the enactment of that law which was not an offense earlier can be criminalized by an ex post facto law, but Article 20(1) will safeguard the individual’s interest and will not make the person liable for conviction under it. The second part of Art. 20(1) protects any person from a penalty greater than what was prescribed for his act at the time of the commission. Any person should not be punished more than what he would have been subject to for the act done earlier at a particular time due to an ex post facto law.

Article 20(1) prohibits only conviction or sentence, but not the trial, under an ex-post-facto law. This does not apply to a change of procedure or of court. A trial under a procedure different from what obtained at the time of the commission of the offense or by a court different from that which had to be followed at that time cannot be held unconstitutional because it is not covered under Article 20 (1) of the Indian Constitution. Any citizen does not have any fundamental right related to the trial or procedure adopted by the court, only right that is at the option of the citizens is in the constitutional cases where there has been a violation of any other fundamental right or the question of law is of public importance.

Rule of Beneficial interpretation

In the case of Rattan Lal v. State of Punjab (4), the court laid down the rule of beneficial construction required that an ex-post facto law could be applied only to reduce the punishment. For eg., A commits an offense of cheating in Boards Exam and the law governing it prescribes a punishment of 6 months of jail term, but an amendment cuts the punishment down to a fine of Rs. 2,000. A will be subject to a fine of Rs. 2,000 instead of a 6-month jail term as it is provided under Article 20(1). Individual who has been accused of the act on which retrospective action of the new law is applied is entitled to all the remedies that may be available to him.

Ex post facto law is all about an act which was not prohibited by law at the time of commission of that particular act, through the understanding of Article 20 (1), it would not be made punishable act or an offense by some legislation with retrospective effect and nor a punishment greater than what has been stated under the law which is enacted, could be made applicable to the act committed at a particular time by making a law later on with retrospective effect. Therefore, the retrospective or retroactive law, which takes away basic rights of an individual away by prescribing a greater punishment or making any legal act prohibited by law after the enactment of any new law, all this is prohibited under Article 20 (1) and it, therefore, safeguards the interests and the rights of any individual by keeping in mind equity, justice, and good conscience.

The jurisprudential aspect of ex post facto laws by leading judicial pronouncements

Supreme Court of India has played a vital role in determining, exploring as well in interpreting the application of ex-post-facto law and the pros and cons of this aspect. Apart from the above mentioned cases, there are several cases in which the Indian courts have dealt with the questions regarding the implementation of such laws.

In R.S. Joshi v. Ajit Mills Ltd (5), Supreme Court held that Article 20(1) relates to the constitutional protection given to individuals who are charged with an offense prohibited by law before a criminal court. This immunity given in the Constitution extends only against punishment governed by the criminal procedure code for a criminal offence which comes under ex post facto law, and cannot be claimed against preventive detention, or demanding some sort of security from any press house under a press law, for acts done before the new law has been passed.

Although there are some exceptions like in the case of Jawala Ram v. Pepsu (6), it was held that imposing retrospectively special rates for unauthorized use of canal water is not hit by Art. 20(1) and hence can be retrospectively applied. Also, any enactment that may involve punishing for an offense or increasing punishments with retrospective effect can take place if the nature of the offense is of violation of taxing statute which does not violate Article 20(1) as it is a continuous offense. In the case of Shiv Dutt Rai Fateh Chand v. Union of India (7), the Supreme Court has given the mechanism behind this proposition.

Art. 20(1) does not grant any citizen a right for any procedure adopted by the court as a fundamental right. Thus, if a law retrospectively changes the place of trial of an offense from any particular court, for example, a criminal court to any tribunal like administrative tribunal is not hit by Article 20(1) as was held in the case of Union of India v. Sukumar (8). A rule of evidence that can be made applicable to the trial of an offense committed earlier is not protected under Article 20(1) as it is not related to the conviction of the individual and instead is related to the trial and procedure adopted by the court where the trial has been commenced.

The court explained in the case of Sujjan Singh v. State of Punjab (9), that any statute cannot be stated as a retrospective law because a particular part of that statute is existing from a time preceding to the enactment of the new law and hence the court allowed the conviction of the person who claimed protection under Article 20(1) contending that a new enactment cannot make him liable to be punished, but the court clarified that the substance of the new law had been brought under the new statute which was present at the time of the omission of the act. A similar feat happened in the case of Chief Inspector of Mines v. Karam Chand Thapra (10), where the court opined that when a law was made in 1923, there were certain rules that were laid down in that act. That Act of 1923 was replaced by a new statute in 1952, but many of the old rules were formulated under the new statute as well. As these rules had been functioning since then, it did not constitute retrospective legislation, an offense committed in 1955 could be still punishable under the new enactment as those laws and rules were in existence by the fact at the date of the commission of the offense.

When a statute constitutes of an offense and also prescribes the punishment for it, is created by a statute enacted earlier, and the latest statute prescribes a different punishment for that offense, the earlier statute is repealed. But that comes under the ambit of Article 20(1) against ex post facto law providing for greater punishment. The latest Act will have no application if the offense described therein is not the same offense present in the earlier Act, i.e. if the main essentials of the two offenses are different. If the latest Act states new offenses or alters punishment for the same offense, no person shall be convicted under such an ex-post-facto law nor can the revised punishment prescribed in the latest Act apply to an individual who had committed the offense when it was not prohibited by law and before the enactment of the latest law. This has been held in the case of T.Barai v. Henry Ah Hoe.

Article 20 (1) of the Constitution of India has always been interpreted in wider terms than the principles incorporated in the American Constitution which have been reluctant to prohibit the ex post facto laws existing. Prohibitions under the Indian Constitution are given to a citizen to evade any sort of punishment or penalty to ex post facto laws and it extends to conviction on sentence and the detailed instructions have been given to this Article by the Supreme Court.

Conclusion

Equity, justice and good conscience on part of the judiciary is an essential requirement for them to ensure peace and sovereignty in the society. According to me, it is important to take in the consideration of the rights of the citizens against ex post facto law, as it will result in punishments to the innocent as any action done by any individual which is legal at the time of commission, may be altered to be prohibited by law but with the assistance of the statutes provided, the individual is not liable to be punished for that act under the new enactment. Article 20(1) safeguards the fundamental rights of every citizen and hence keeps the spirit of the constitution alive, provided with the various judicial pronouncements have provided justice to the victims and the prospective victims because of the retrospective application of the law.  

References

(1) Indian Constitution Bare act, Article 20(1).

(2) 1 L Ed 648.

(3) 3 L Ed 162.

(4) AIR 196 SC 444.

(5) AIR 1977 SC 2279.

(6) AIR 1962 SC 1246.

(7) AIR 1984 SC 1194.

(8) AIR 1966 SC 1206.

(9) AIR 1964 SC 464.

(10) AIR 1961 SC 838.

  

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