This article is written by Mir Adnan Zahoor pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho), Zigishu Singh (Associate, LawSikho) and Indrasish Majumder(Intern at LawSikho).
This article has been published by Abanti Bose.
In criminal law, there is universal recognition to the principle of the prohibition on retroactive criminalization, meaning that certain conduct cannot be said to be criminal unless there is a law establishing its criminalization, and therefore any ex post facto crime-creation shall be considered as invalid. This principle is captured by the Latin maxim Nullum crimen sine lege, meaning “no crime without law”, and it is interchangeably used with Nulla poena sine lege which means “no penalty without law”. The maxim(s) have been held to be a fundamental facet of criminal justice and rule of law. The nullum crimen sine lege is also referred to as the ‘principle of legality. The rationale behind the principle is to accord an individual the ‘fair warning’ by way of a previously published law, which in clear and uncertain terms declares particular conduct as criminal. The principle of legality assumes that the law is to be enforced against individuals who are rational and autonomous, and that law shapes and influences their choices or decision-making. Therefore, the law which possesses such a power cannot be unknown or unpublicized; rather individuals should be given fair notice of the law so that they conform to its requirements. Any departure from this principle is viewed as lending support to unrestricted discretion of the judges and police. Further, in its extreme form, the neglect or omission of the principle of legality has been likened with ‘the abandonment of rule of law and unfettered authoritarian state’. The importance of the ‘Principle of Legality” can be gauged from the fact that in the United Nations, four-fifths of the member states have given this principle the position of a constitutional guarantee in their national law. Furthermore, the principle has been incorporated in various regional and international conventions. The Constitution of India under Article 20(1) provides for the protection against retroactive laws by prohibiting conviction for an act that was not an offence at the time of its commission, and the prohibition against retrospective enhancement of punishment to the convict.
In the following sections of this article, an overview as to the scope and purpose of the principle of nullum crimen sine lege (the principle of legality); its position in the Indian constitution and international law, and finally the conclusion will be provided.
Scope of nullum crimen sine lege
Nullum crimen sine lege or the principle legality is considered to be imperative for a fair trial. The non-recognition of nullum crimen sine lege shall not only deprive an individual of a chance to regulate his conduct but also will also remove the limits upon the punitive power of State under criminal law. And broadly speaking, the principle is not restricted to the prohibitions against the application of ex post facto law but entails other guarantees as well. The principle of legality is constitutive of the following four guarantees: one, the requirement that the criminalization of certain conduct is foreseeable (nullum crimen sine lex praevia); second, the requirement that laws are to be narrowly interpreted, thereby leaving no scope for judicial creativity (nullum crimen sine lex stricta); third, the requirement that the laws laid down are defined precisely so that accessibility and foreseeability of the law are secured (nullum crimen sine lex certa); and fourth, the requirement that laws are rendered into a codified law (nullum crimen sine lex lex scripta).
The foregoing four guarantees of this principle are essential for the making of the law that is accessible, foreseeable, and predictable, all of which is a legitimate expectation of the state which is democratic and accepts rule of law as a constitutional norm. Therefore, the principle of legality serves as a safeguard against the arbitrary power of the state.
Purpose of nullum crimen sine lege
As mentioned in the foregoing, the principle of legality prohibits retroactivity in the application of criminal law. Additionally, the guarantees under the principle cumulatively forge compatibility with the doctrine of separation of powers. In the area of legislation, the principle informs the legislature to make laws that are precise, uncertain, and not vague. Further, the principle seeks to ensure that interferences against the individuals by the executive are not undefined and excessive. Finally, the principle of legality, as an interpretative tool, places limits on the extent to which the black letter of the law reasonably allows the unelected judges to interfere with the liberty of an individual. Thus, it should not be unfair to state that, just as the individuals are required to abide by the publicized law, so too is the legislature tasked to pass the laws that are clear, uncertain, and accessible, while the judiciary is duty-bound to not to convict an individual for an offence which has not been declared as criminal by the text of the law.
Constitution of India and nullum crimen sine lege
Article 20(1) of the Indian envisages prohibition on conviction and enhancement of punishment under an ex post facto law. Article 20 (1) provides as follows: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
The Supreme Court of India in Rao Shiv Bahadur Singh v. Vindhya Pradesh held that the principle of non-retroactive is of “paramount importance” and described the retroactive crime-creation and punishment as “unjust and inequitable”. Further, the case of Soni Devrajbhai Babubhai v State of Gujarat rejected the arguments of the appellants who had sought to apply the provision of newly added provision related to dowry death under Section 304-B of the Indian Penal Code to the alleged incident that occurred prior to the date of insertion. In the said case, the alleged incident had taken place in August 1986 and Section 304-B was enacted in November 1986. The Court held that application of Section 304-B retrospectively would result in the denial of the protection given under Article 21(1) of the Constitution.
In the landmark judgment of Selvi v. State of Karnataka, the High Court held that the guarantees under Article 20 are the ‘fundamental protections that control the interaction between the individual and criminal justice system’. The Court while delineating the interplay between guarantees of Article 20 and 21, emphasized that the duo has acquired the non-derogable status even during the national emergency pursuant to the Forty-fourth Amendment Act, 1978.
Notwithstanding the foregoing, the interpretation of the Supreme Court with respect to Article 20(1) has been viewed as being restrictive. According to Chandra and Satish, the Supreme Court’s interpretation has caused ‘problematic distinctions between criminal and civil liability; and procedural rules and substantive provisions’, thereby inhibiting, what otherwise is, the broad scope of Article 20(1) guarantee. It has been argued by them that such an interpretation of the Supreme Court is ‘insensitive to the material disadvantage it can cause to the accused’. For example, on the basis of criminal-civil distinction, the Court has allowed retrospective civil liability in contradistinction to criminal liability, or that ex-post application of tax penalties for the failure to pay tax has been upheld by the Court. Similarly, on the basis of procedural-substantive distinction, the Court has upheld ex post facto procedural changes (like change in court) thereby holding no fundamental to of being tried by a particular court or procedure; and the Court even upheld the application of a new evidentiary rule to the trial where the offence has been committed earlier. Following Chandra and Satish, the Supreme Court’s very own expansive ‘due process interpretation’ read into Article 21 in recent years needs to be deployed as it has made room for the prohibitions which previously could not be made in view of the formalistic distinctions mentioned hereinabove. Further, in absence of the fair notice of a publicized law, the individuals are faced with the threat of the State’s excesses and are retrospectively condemned for the exercise of their liberty.
Noteworthily, unlike the Indian Constitution, the American Constitution renders the retroactivity as void and therefore such retroactive laws can be struck down on the touchstone of constitutionality by the United States Supreme Court.
International law and nullum crimen sine lege
Post World War II nullum crimen sine lege or the principle of legality has acquired recognition in international as well as regional human rights covenants. The principle was first given recognition in the human rights instruments namely, Universal Declaration of Human Rights, 1948 (Article 11, UDHR) and European Convention of Human Rights, 1950 (Article 7, ECHR), and later in the International Covenant of Civil and Political Rights (Article 15, ICCPR). In conventions pertaining to international humanitarian law, the principle of legality has been included in the Geneva Convention III (Art. 99 (1)); Geneva Convention IV (Art. 67), and Additional Protocol I (Art. 75 (4) (c)). More recently, the Rome Statute of the International Criminal Court also recognized the principle of nullum crimen sine lege in its Article 22.
In addition to the foregoing, other regional human rights treaties such as the American Convention of Human Rights (Article 9, ACHR) and African Charter of Human and Peoples’ Rights (Article 7(2), ACHPR) have also accorded recognition to the principle of legality.
The International Court of Justice has held the principle of nullum crimen sine lege to be one of the ‘most sacred principles of criminal law’. Further, the European Court of Human Rights (ECtHR) has held this principle to be one of the jus cogens principles, meaning that rights that flow from it are non-derogable and peremptory in nature. In the 2015 report of the United Nations Working Group on Arbitrary Detention, it has been stated that the ex post facto increased sentence of a prisoner, who otherwise has fully served the prior sentence, is violative of Article 15 of ICCPR and customary international law.
From the foregoing discussion, it can be clearly established that, under international law, a person cannot be held guilty under an ex post facto law, and neither can an individual be sentenced to a heavier punishment under an ex post facto law than the one which was imposed on him at the time of earlier sentencing.
Conclusion : non-retroactivity as quintessential for rule of law
From the foregoing discussion, it should not be an overstatement to describe the principle of non-retroactivity of nullum crimen sine lege is a quintessential rule of law. From the standpoint of individual rights, the principle heralds for the guarantee of establishing the right to a fair trial. The principle by offering an individual a “fair warning” through pre-established laws in its essence acknowledges the individual autonomy of choice-making on the basis of a known law. Latent in this is the linkage between an individual’s personal liberty and accessibility of the law (a facet of Rule of Law). Nullum crimen sine lege is not only the recognition of individual liberty alone but also a means of protection against the excesses of the State’s punitive power. Just as it is important for the State to exercise its coercive powers to establish its social control for the public good, so too it is important to place limitations on the exercise of such power to prevent State arbitrariness. As the Canadian academic Broomhall aptly puts it, “The principle derives in part from a consciousness of the serious consequences for the accused that may flow from the criminal justice process, and therefore of the need to protect relatively powerless individuals from the interference of State (or inter-State) legal machinery”.
Further, it has been argued that the recognition to the nullum crimen sine lege both at the domestic and international level has led to the embracing of the doctrine of strict liability, whereby the accused is not convicted unless it is shown that the conduct in question is criminalized by a law enacted prior to its commission. This has been described as a departure from the doctrine of substantive justice, which provides for the punishment to the conduct of the accused of the harm caused by him to society irrespective of the fact whether such conduct was proscribed by a clear law before its commission. The latter doctrine’s replacement by the former doctrine, which favours the accused, has been entailed particularly by the recognition of nullum crimen sine lege in the instruments pertaining to international humanitarian law and human rights.
In summation, any neglect or repeal or dilution of the nullum crimen sine lege shall not only ooze out rights guarantees under the principle that are recognized both in national and international law; but also systematically disadvantages an accused in a criminal trial wherein unfair, inequitable, and unreasonable burden is placed on him for proving his innocence. This is coincidental with the abandonment of the idea of Rule of Law and embraces of an authoritarian state as, in history, it was exemplified by Nazi law in 1935 by repudiating the long-standing principle of legality in the German Criminal Code. Thus, this principle serves as a necessary safeguard in a liberal constitutional order, where the State’s unconstrained and indeterminate powers to criminalize are prohibited by upholding the liberty of an individual.
- https://www.bloomsburycollections.com/book/rome-statute-of-the-international-criminal-court-a-commentary/chpart-3-general-principles-of-criminal-law at p. 953
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