This article is written by Aditi Das.
Certainly, the upsurge of crimes today dominates the majority of the newspaper and electronic media. However, are all summons against the accused legitimate? Seemingly, of the thousands of cases that are filed every day, at least hundreds consist of guilt-free accused, who are nevertheless put behind bars, owing to the flaw in the judicial system. On the account of this, the Indian Constitution has laid out certain provisions under Article 20, inclusive in Part III. However, the crux of this paper will be majorly dealing only with Article 20(1), while brief explanations of the other two clauses [Article 20 (2), Article 20 (3)] will also be considered. Article 20(1) is also known as “Ex-post Facto” Laws, that can be comprehended as “After the fact; by any act or fact occurring after some previous act or fact, and relating thereto; by subsequent matter; the opposite of ab initio”, meaning, laws which criminalize an act or escalate its punishment.
The consequential feature of the Article is to preserve and protect the right and privilege of guilt-free individuals, from being penalized for offences that were legal when committed but became illegal with the advent and enhancement of time. For instance, the Dowry Prohibition Act,1961 commenced on 20th May 1961. Hence, a person who demands dowry will be guilty of the same under the Act from 20th May 1961 and not before that. The three kinds of Ex-post facto laws are:
- A law that proclaimed some act or omission as an offence for the first time after the completion of the same. It means that if an Act is not considered illegal while the commission of a crime, the same cannot be termed as an offence after an Act for the same has been passed. The clause was discussed in the case of Kaniayalal v. Indumati, wherein the court held that “A law enacted later, making an act done earlier (not an offence when done) as an offence, will not make the person liable for being convicted under it.”
- A law that magnified the sanction for an offence succeeding to the commission of that offence. This clause aims at protecting the offender from encountering a sanction greater than what he might have been subjected to while committing the act. This clause was decided in the case of Wealth Tax Comr. Amritsar v. Suresh Seth, wherein the court held that “A person cannot be made to suffer more by an ex-post-facto law than what he would be subjected to at the time he committed the offence.”
- A law that suggests a fresh and non-similar procedure for the prosecution of an offence succeeding to the commission of that offence.
Of the three categories, only the first two are protected by Article 20(1). In the landmark judgement of Kedar Nath v. State of West Bengal, the court held that an act that is deemed to be an offence under the criminal law, cannot be applied retrospectively and ought to be prospective always. Similarly, in Mohan Lal v. State of Rajasthan, it was held that only the conviction and sentence are included in the prohibitions of Article 20(1), not the procedure of trial. No fundamental right pertaining to trial is available to a person who is accused of an offence, except so far in violation of any other fundamental right or way of discrimination under the constitution. Also, the court held that Article 20(1) implies that “the rule that there will be no retrospective infliction of penalties heavier than those existing ones at the time of commencement of offence.”, in Maru Ram Etc v. Union of India & Anr. Having said that, there are a few exceptions to these rules as well. One being in the case of Rattan Lal v. The state of Punjab, wherein the retrospective application of the criminal law was allowed by the Apex court relating to an issue where the reduction of sanction was demanded.
Apart from discussing the Ex-post facto Law in India, the paper will focus on the multi-dimensional aspects of the Law of several countries like the USA, UK, Ireland, Japan, and likewise, analyze why the law is often frowned upon by these countries and shed light on the theory of the same.
The landmark case of K. Satwant Singh v. State of Punjab highlights the scope of Article 20(1). Prior to 1943, there was no mention of minimum sanction under Section 420 of the Indian Penal Code and an unlimited amount of fine could be imposed. Post-1943, the Supreme Court laid down that, there is a need for a minimum sentence and that the court ought to inflict on the accused mandatorily. In this case, the Apex Court held that there was not an infringement on Article 20(1) through the trial process as there was no chance of imposing a greater penalty than the existing penalty, which never existed prior to 1943 or was unlimited in nature. The judgment read, “A law providing for a minimum sentence of fine on conviction does not impose a greater penalty than what might have been inflicted under the law at the time of the commission of the offence when such a law authorized the imposition of an unlimited fine for the same offence”.
The scope of Article 20(1) does not extend to the violation of Tax Laws. Therefore, the increase of penalty for violation of a statute relating to tax applied retrospectively, will not be held invalid. This principle was held in the case of Shiv Dutt Rai Fateh Chand v. Union of India. The reason behind this rule is that, the word “Penalty” used under Article 20(1) does not extend to penalties for offences other than criminal offences. Hence, when a taxing statute’s penalty is in question, it will be referred to penalty under civil law. And the scope of Article 20(1), therefore is limited only to criminal offences. Also, only when an ex-post-facto law pacifies the rigour of criminal law, it is believed to not come under the ambit of Article 20(1), when was the case in Rattan Lal, as discussed earlier in the paper.
Earlier in the paper, we have seen the Latin derivations of the Ex-post facto law along with few cases laws that have given the new definition to the law. Let us now see from where this law has been origin from. In 1928 the All-Party Conference appointed a Nehru Commission which in its report discussed retrospective laws among which Ex-post facto law was one of them. The report stated that these retrospective rights need to be implemented in the future Constitution of India. Further, while drafting Article 20 of the Constitution, our framers, B.R. Ambedkar and B.N. Rao definitely had the US provisions in their minds. Not only in the US and India, but the law is also prevalent and accepted by the European Convention of Human Rights, United Nations Covenant on Civil and Political Rights (ICCPR)- Article 15(1) and Article 11 in paragraph 2 of the Universal Declaration of Human Rights as well. These three organizations have collectively held that the law should allow no person involved in an offence, to be punished when there was no law on the offence at the time of the commission of the same.
The primary case of ex-post-facto law was seen under the US Apex Court during the 1990s in the case of Calder v. Bull, wherein the court came up with the explanation of the law stating that an ex-post-facto law is any law that criminalizes an individual for committing an offence which was not an offence under the law during the commissioning of the act or which grants sanctions quite higher than the offence. In another case named Fletcher v. Peck the Chief Justice, Marshall also explained the definition of the law. It held, “one which renders an act punishable in any manner in which it was not punishable when it was committed”. Now, both the definitions are extremely similar in nature, just different in sentence framing. With the advent of time, criminal law has also been evolving, and there are several instances where the criminal law punishes the offender for a crime, who is not bound by the offence under ex-post-facto law. This happens mainly because the law brings into picture several other crimes which add up to the intensity of the crime then committed. Along with this, because of the amendments and modifications in the law, the rule of evidence also seems to be have been erased at times, which further traps the offender. By this, it becomes easier for the offender to experience jail terms than they would be experiencing if these new modifications had not come into the picture. In the case of Beazell v. Ohio, the court granted the implementation of Ex-post facto laws against the structural guarantees. It stated, “Any statue which punishes as a crime a previous act which was innocent when committed violates the constitutional guarantees”.
In some cases where even if the statute prefers a procedural form, and the same affects the substantial rights, then such law will fall under the ambit of Ex-post facto laws. the same was held in Winston v. State. The penal laws in the UK are interpreted in such a manner as if there is no existence or implementation of the ex-post-facto laws and this is mainly because the parliament does not approve of the criminal laws applied retrospectively. In the case of Waddington v. Miah, the court did not allow the interpretation of the Immigration Act, 1971 and denied its retrospective effect and this was done under Article 7 of ECHR, the one which forbids and grants independence from the ex-post-facto law. The component prior to sanctioning a law is that it will have an impact ex nune which deciphers to any situation ensuing to the requirement of that enactment.
The Corpus Juris Civilis of Justinian broadcasted a solid assumption against this law. It was introduced in the British legal system by Bracton, while it was funded by Blackstone, and the guideline has become familiar to the individuals as a “fundamental show of statutory development”. Within the territories of the US, this law and its retrospective applicability are completely barred from implementation considering the federal principles of their Constitution. Now that the paper has discussed the history of the law and its applicability in different regions of the UK, US, likewise, let us now focus on the provisions that have been given under the Ex-post Facto laws.
Two-fold theory and securities under the ex-post-facto law
Under Article 20(1) of the Indian Constitution, there is a theory by the name of the Two-Fold theory. Now, this theory is nothing but the same provisions that law provides under the article. We have already discussed the provisions under the same, however, just to comprehend better, the paper will state the two principles of the theory. They are:
- When an offence is not considered as an offence under the law during its commission, the accused person cannot be put behind bars.”
- The accused person cannot be given a penalty that is higher than the act committed during the offence.
Under this article, trial procedure or any change of procedure is not protected, however, it only gives security for conviction and sentence. Hence, no citizen has any fundamental right to protection for trial, and the only protection is during constitutional cases where other fundamental rights are violated or when there is mass demand for a particular question of law.
As mentioned several times earlier in the paper, the only safeguard one can have under Article 20(1) of the Indian Constitution is that saving oneself from getting a jail term, because of the acts, not being a crime, while the commission of the same. At the same time, our Constitution is extremely vast and hence while interpreting the same, it is a must for confusion and questions to arise. In the case of State of West Bengal v. Anwar Ali Sarkar, the court was of the opinion 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?”. Here, in layman’s language, the court said that there are so many cases every day and interpreting the laws regarding the same is extremely tedious. Why? Because one has to dig into the history and origin to come to the final conclusion, and sometimes one theory of law has no history. How can one interpret the same then?
Along with this, it is to be noted that Fundamental rights do not come under the ambit of Article 20(1) and have no effect or impact, even though the doctrine of Eclipse under Article 13(1). This was held in the case of “Keshavanan Madhavan Menon v. the State of Bombay”. It stated 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”. This can be better comprehended by an instance. There is no availability of fundamental right of trial for a person who has been guilty of an offence; such person however has an exception in cases where the provisions of the law have been illegally used against him. In the case of West Ramnad Electronic Distribution co. Ltd v. State of Madras, the court was of the opinion that the retrospective laws do not fall under the term- Law in force and are therefore named by ex-post-facto law only. Hence, under the Indian Legislation, Article 20(1) safeguards the right of individuals against personal liberty and living with dignity.
Rule of beneficial interpretation and judicial precedents of the law
Rule of beneficial Interpretation was primarily laid down in the case of “Rattan Lal v. State of Punjab”. In this case, the court explained that this rule simply reduces the sanction and penalty upon the accused. For instance, if a person is sentenced to jail for a term of 2 years and later a new modification comes up regarding the same law to reduce the sentence to 1 year, in that case, the accused will only be given a 1-year jail term of punishment. It basically says that the retrospective theory of the amended law will be applied to the offender and he is entitled to all the remedies available under the amended law. This rule is mentioned under Article 20(1) of the Indian Constitution. Ex-post facto law has played a significant role in the Indian Legislature. Apart from these cases, the paper will further analyze several other cases where the courts have pinned down their opinion on both the merits and demerits of having such a law in existence.
The Apex court in the case of R.S. Joshi v. Ajit Mills Ltd tried to build a nexus between the ex-post-facto laws and their importance in regard to the Constitution of India. The court stated that this type of law gives constitutional protection against all cases falling under the criminal procedure, this protection is limited to the criminal courts and the same cannot be claimed under other laws such as preventive detention, for any acts done before an amended law, for press law security and likewise. This could be considered as one of the demerits of the ex-post-facto laws. Now, when there is a law, there have to be exceptions. Hence, laws such as usage of canal water which are unauthorized, implementing exclusive prices for the same do fall under the exceptions of ex-post-facto laws. The same was held in the case of Jawala Ram v, Pepsu. Another important exceptional judgment was given in the case of “Shiv Dutt Rai Fateh Chand v. Union of India”, which stated that where there is a violation of taxing laws and statutes, the duration and gravity of sanction can be greater than that of the offence committed. It is because the taxing laws do not violate article 20(1) simply it being a continuing offence.
In another case of Union of India v. Sukumar, the court was of the opinion that if any court opts for a procedure as a fundamental right, the same does not come under the ambit of Article 20(1). It further stated, “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)”. In the case of “Sujjan Singh v. State of Punjab”, the court held that not every law is termed as retrospective law only because a specific part of the same law is in existence since the sanctioning of the amended law. It further granted the conviction of an accused who sought protection under Article 20(1) stating that the modified law is not eligible to hold him liable against the sanction. For a better understanding, let us see this instance. Suppose there was a law in 1932, and the same was replaced or amended by the law of 1952. Now, a person committing an offence in 1955 can still be liable under the 1932 Act. The same was held in the case of “Chief Inspector of Mines v. Karam Chand Thapra” where the court held, “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”. Lastly, the court has given a provision that when an amended statue replaces the older statue, the laws of the older statue stand repealed. However, if the offences of the older statute and amended statute are not similar, then the act will fall under Article 20 (1) but against the ex-post-facto laws. This principle was held in T. Barai v. Henry Ah Hoe.
In comparison to the American Constitution, the Indian Legislation has always given a broader explanation of Article 20(1) in all terms. The same is somewhere or the other apricated because of the vast opportunities offered to the accused. Throughout history, the retrospective laws have given justice to a wide range of society who at some point of time have been illegally detained. Some have been lucky to get a reduced sentence term. At the end of the day, equity, justice and good conscience are what is expected from the judiciary and laws like ex-post-facto definitely serve that purpose. These laws are more of a security or protection towards injustice to the innocents, and the article provides for the protection of fundamental rights of every individual, thus keeping the spirits of our constitution alive still. Throughout the paper, the author aims to bring up the law in light of various cases and the judicial take of the judges on the same. Some judges have gone beyond the theory to find out the merits and demerits of the same as discussed earlier in the paper. Such laws and rules like the one of beneficial interpretation are of much need in today’s society and definitely serve as a boon to the country.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: