Ex post facto
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This article is written by Medha Varshney.

Introduction

Under part III of the Indian constitution, Fundamental rights are granted to all citizens of India so that they can live a dignified and harmonious life & when such rights are violated, the punishment shall be imposed. The history about the incorporation of Ex Post Facto laws says that all Party Conference appointed Jawaharlal Nehru committee who in its 1928 report incorporated a provision, in which draft proposed by Dr. B.R. Ambedkar and the constitutional advisor Sri B.N. Rao signifies that the framers of our constitution while drafting Article 20, enumeration certain rights one of the rights recommended was protection in respect of punishment under Ex Post Facto laws which hold the provisions of the U.S. Constitution and principle of UDHR etc. in their mind. Around 1946-1948 India was recognised as a part of the United Nation. Therefore In 1949 Constitution of India was rectified and provisions u/a 20(1) were inserted in the Indian Constitution. 

What is an ex post facto law

Ex Post Facto is a Latin word which means ‘after the fact’ or ‘out of the aftermath’ and also known as retroactive laws. 

Ex Post Facto laws are those laws which are enacted after an action is committed making such an act illegal although it was legal when committed. In the literal sense, it’s a law which criminalizes such conduct which was once legal.  For Example- if ‘A’ committed theft on 17th Nov which was not an offence on that particular date. On 20th Nov. legislature enacted a law under which theft was an offence. Then whatever punishment was laid down by legislature ‘A’ was held liable as per Ex Post Facto laws, therefore ‘A’ had to bear the same punishment as per new laws even without knowing the consequence of his act when he was committing it.

Countries like England don’t prohibit this law whereas USA, India etc. prohibit this law.

International Laws 

There are certain international laws which talk about fundamental rights and human rights aspects. 

  • Article 11(2) of UDHR, 1948

Under national or international law no person held guilty of any such act or omission which at that moment didn’t constitute any penal law. Heavier penalty can’t be imposed than the one which was applicable at the time when the penal offence was committed (1).

  • Article 1 Sec. 9 of U.S. Constitution, 1788

 No bill of attainder or Ex Post Facto law shall be permitted to pass by any state (2).

Paul Johann Anselm Ritter von Feuerbach gave the principle of Nullum crimen, nulla poena sine praevia lege poenali, a Latin maxim, and meaning thereby when there is no crime, no punishment without a previous penal law i.e. when no crime committed no punishment should be given, without a violation of penal law as it existed at the time. From the US constitution into International criminal law, ex post facto clause was incorporated. It says no one can be punished for doing something that is not prohibited by law. This principle is considered as a fundamental requirement of the rule of law and described as one among the ‘widely held value-judgements in the entire history of human thought’.

  • Article 7 European Conventions of Human Rights 

Until law doesn’t hold recognised punishment, no person shall be punished for any act which governed the citizens at the time of the commission of the act (3).

  • Article 15(1) ICCPR

Until there is any act or omission which did not constitute a criminal offence, no one shall be held guilty. Can’t impose a grave penalty according to that which is applicable at the time when the criminal offence was committed (4). After the commission of the offence, if any provision is enacted which impose a lighter penalty, the offender shall benefit thereby.

What amendments can be done using ex post facto laws

  • Criminalize such actions that were legal when committed.
  • Adding certain severe provisions which bring the crime into a more severe category than it was in when it was committed.
  • Change the tenure of the punishment which is prescribed for a crime, like- by adding new penalties or extending terms.
  • In order to make the conviction of a crime more likely than it would have been, alter the rules of evidence (5).

If any law wasn’t made in writing and holds oral provision over any offence and according to that any accused was convicted, in India that is not acceptable because law in writing holds binding effect. 

Ex post facto law in India

As per Indian laws, Art. 20(1) of the Indian Constitution says ex post facto laws are prohibited i.e. no retrospective effect of accused criminal acts.

The aim is to maintain law and order; to protect intentional or illegal detention.

Protection – 

  • Accused can use this right during conviction or sentence but not a trial. 
  • Protection is available to both citizens and foreigners for criminal cases.

Essential of ex post facto laws

  • There shall be a commission of offence and such offence was not legally recognised. 

The 1st part of Article 20(1), in a literal sense, means the violation of any such law for which a person is convicted must be in existence when the act is committed. It follows therefore that a person cannot be convicted for an act, which was not an offence under the law in force when that act was committed (6).

  • Generally in Ex Post Facto laws, there is a retrospective effect, but as per Indian constitution, there is prohibition regarding retrospective operation. i.e. no punishment under retrospective operation.

The 2nd part of Article 20(1), in a literal sense, means punishment which was in force when the offence was committed will be applicable and there will be no retrospective operation. E.g. – A commit theft on 27th Aug 2020 imprisoned for 2 months. Later on 1st Sept. 2020 amendment was made which says the average punishment of theft is 3month in addition to monetary compensation that should be given to the victim. Now the judiciary can’t punish offenders of 27th Aug availing the extended punishment of 1st Sept because this art doesn’t hold retrospective operation.

Until there is any specific act which forbids the doing or omission to do something no punishment can be attracted. This expression refers to the law factually in operation (law presently in force) when the offence was committed and not law ‘deemed to be in force’ (7). In 1946 the accused committed an offence which was recognised under the Act and punishable with fine, imprisonment or both. Later in 1949 that act amended and enhanced the punishment by an additional fine equivalent to the amount of money procured by the accused through the offence. The court decided that additional punishment which was enhanced later couldn’t be applicable to the act committed in 1947 by the accused. Therefore, set aside additional fines imposed by the amendment act (8). Fundamental rights hold prospective effect and if used retrospectively, it will affect the functioning of the pre-existing laws (9). Article 13 gives the power of judicial review to courts and allows them to declare a law invalid only to the extent of unconstitutionality (10).

Harmonious Construction

The legislature has power U/A 245 of Indian constitution to make law using retrospective and prospective effect whereas art 20(1) impose restriction for accessing retrospective effect on criminal legislation. Thus, harmonious construction of these principles is done; Article 20(1) controls the power of the legislature for enacting retrospective legislation concerning punishment for crimes. In the case of CIT v. Hindustan Bulk Carriers 2003, 5 guidelines focusing rule of harmonious construction have been directed by Supreme Court of India.

Doctrine of Eclipse

All such laws which are violating the fundamental rights of the constitution seem to fade away and become operative only when a fundamental right is inconsistent or there is a need for such provisions. These laws are overshadowed but never dead (i.e. doesn’t become void ab initio). If any offence was committed by accused over that shadowed principle then such person shall not be punishable and hold protection under above remedies. Therefore we can say ex-post facto laws are directly proportionate to the doctrine of eclipse. e.g. – There was a law which prohibits drug abuse in all matters but it affects the medicinal use of drugs which affect the right to health of its citizens, therefore such law was overshadowed using the doctrine of eclipse. If A being a chemist uses drugs for medical purposes not to be held liable considering the fact that such law has been overshadowed.

Exception

In Indian constitution, no absolute right is given to its citizens therefore Art 20(1) subject to certain restrictions.

  • Preventive Detention

In order to maintain peace and to stop the further commission of an offence in society, preventive detention is used by way of imprisoning offenders. Article 20(1) implies convicted and offence words which make it clear that the article has no application to preventive detention. It imposes restriction against conviction/ punishment etc. but not against detention (11). Article 20(1) provides constitutional protection to individuals charged against criminal offences prohibited by law

  • Civil liability/Proceeding

In case of civil liberties or civil proceedings, Art 20(1) shall not be applicable. Art. 20 don’t contemplate proceedings under tax laws which have the civil sanction and are of revenue nature. U/A. 

20(1) [2nd part] word ‘penalty’ doesn’t include a penalty under a tax law levied by departmental authorities for violation of statutory provisions; such holds only civil liability though penal in character (12). In June 1957 an act was passed which imposed liability on that employer who is closing their undertakings to pay compensation to their employees from November 28th 1957 & if failure to dischargement could lead to imprisonment. The Supreme Court held such liability was a civil liability which was imposed by the laws, not an offence; therefore article 20(1) couldn’t apply to the liability from the period 28th November 1956 to June 1957 (13)

  • Demanding security from a person

If any person is behind bars and there is any amendment in existing law or enactment of the law which says that you can acquit any person who is in custody after demanding security. In such case, Article 20(1) shall not be prohibited and such person shall be getting the benefit that he/she can be discharged after paying the security amount. This lower down the acts of torture, cruelty and unusual punishment. 

  • Repealed statutes   

If the accused committed an offence which was recognised in law when committed but later repealed, in such matters the court can redress the case applying those repealed statutory provisions. For e.g. – persons charged under the Terrorism and Disruptive Activities Act (TADA) and Prevention of Terrorism Act (POTA) continue to languish in jail even though the laws have been repealed. Even Though such laws have been languishing but such punishment shall be continued until the tenure of punishment will be completed. In 1973, for accepting bribery Public officials were tried for criminal conspiracy and illegal gratification under the Prevention of Corruption Act, 1947. Accused appealed before the Supreme Court claiming that the burden of proof applied to their trial mandating that the court presume the accused guilty unless proven otherwise was in violation of Article 20(1), later legislature had repealed the relevant statute which applied this standard. The Supreme Court held that repealed statutes remain applicable to crimes committed before the statute’s repeal therefore denied the appeal (14).

Rights available

Any person if arrested for any such act which when committed doesn’t consider as offence, then such person can avail remedy focusing below legal provisions-

  • Art 21– Indian constitution. 
  • Article – 20(1) Indian constitution – Protect or Safeguards the interests and the rights of any individual by keeping in mind equity, justice, and good conscience.
  • Art 32 or 226 of the Indian constitution.

These provisions also include suo-moto cognizance which can be taken by the judiciary because fundamental rights are the basic principle and on this judiciary hold complete power to provide protection to its citizens by taking Suo-moto cognizance.

  • Rule of beneficial construction

When there are two or more possible ways of interpreting any statute’s section or word, the meaning which gives relief and protection to accused should be chosen. E.g.- A in his board exams commits cheating, as per punishment of existing laws he gets imprisonment of 2months, later such as amended and prescribes punishment as fine of Rs. 2,000. As per beneficial construction rule, A instead of getting punishment of 2months subject to a fine of Rs. 2,000.

In the case of Rattan Lal vs. State of Punjab AIR 1965 SC 444, on 31-May-1962, ‘A’ boy of 16yr found guilty of an offence and was awarded imprisonment of 6 months. On 22-09-1962 he made an appeal in the Court of Session but that was dismissed, on 27-9-1962 he went to High court and his appeal was again dismissed.

On 01-sept.-1962 the probation of offenders came into force. W.r.t. to that he approached the high court but no plea was taken into consideration regarding the benefit of the act.

He filed a Special Leave Petition & approached S.C. It was argued that he should be given the benefit of the act.

Govt. defended: the act is not retrospective and the offence was committed much before the act came into the force. 

The Supreme Court observed: an Ex Post Facto law which only reduces the rigours of a criminal act does not fall within the said prohibition. If a particular law makes provision to lower the punishment benefiting accused though retrospective operation, it will be valid. 

Therefore, RULE OF BENEFICIAL CONSTRUCTION required that an ex-post facto law could be applied only to reduce the punishment. 

Case laws 

The Supreme Court of India has played a vital role in determining, exploring and interpreting the application of prohibiting Ex Post Facto law and the pros and cons of this aspect. There are several other cases in which the Indian courts have dealt with the practicality of such laws.

Held- 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 which is of public importance. Therefore, Article 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 offence from any particular court, for example, a criminal court to any tribunal like administrative tribunal it doesn’t get any protection by Article 20(1).

In Mines act 1923 certain law/ rules were laid down. Later in 1952 such an act was replaced with a new statute. Some of the old rules of act 1923 were incorporated in the new statute of 1952. Therefore, such existing statutes don’t constitute retrospective legislation as they are already in existence. If any offence committed in 1955 focusing any old principle which holds its recognition in the new statute, accused still be punishable under the new enactment because such old laws and rules are still in existence with new statute considering the date of commission of the offence.

When an old statute recognised an offence and prescribed the punishment for it and there is also the latest statute prescribes a different punishment for that same offence; the similar provision of an earlier statute is repealed. Let’s say an act provides 2yr. punishment of an offence. After 5 years there is some amendment in that act which changes some of the provisions but didn’t change that particular provision under which the accused was guilty. Then if any offence was committed with respect to that particular provision which remains unchanged then the accused or wrongdoer can’t take protection under art 20(1) because the act remains unchanged in the new amendment.

Under Section 420 IPC, no minimum sentence of fine which means unlimited fine can be imposed. In 1943, an ordinance laid down which inflicted a minimum fine on a person convicted u/s 420. Protection U/A 20 can be availed when conviction or sentence is done imposing the penalty greater than that which can be inflicted on the commission of the offence for which law shall be in force. But in the present case, no greater punishment has been inflicted because the fine which could have been imposed before the new ordinance under S. 420 IPC was unlimited. Therefore art 20(1) is not entertained. 

Pros

  1. Art 20(1) is a blessing for all those innocent people who have no idea that their act might become illegal in the coming future because if they knew about it they might have not committed it. 

E.g. – 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. Any act which was once legal not remains legal anymore also prohibited by law, like currency notes. If the punishment of such an act applies retrospectively then lots of innocent people would be behind bars. Therefore, these changing circumstances have led to wrongful punishment of many individuals who did not actually commit any offence that was punishable by law and according to their knowledge, that act was actually legal.

  1. Art 20(1) is defined in a concrete way. Detailed instructions have been given to this Article by the Supreme Court in their judgements which brings more clarity. 
  2. It is a benefit because if there will be retrospective applicability then the situation in custody and jail might be worse and there will be more burdens on the judiciary. In order to maintain law and order and prevention from illegal detention, such protection is given.

Cons

  1. All those wrongdoers who intentionally commit such acts cause harm to innocent people. Though the act was not legally recognised all those accused even by doing wrong also get protection under Art 20(1) which is unfair because they are just getting rid of punishment. E.g. – In office premises any person misbehaves with women or vice-versa considering the fact that no one will file a report against him. Though such workplace misbehave was not legally recognised as a result all those who commit offence before enacted law can take protection u/a 20(1).
  2. While committing certain recognised offences, accused detained, whereas certain accused who had committed a criminal offence which is not recognised, repealed or decreased the punishment get protection under this Art. 20(1). This violates Art 14 because this is unjust w.r.t. other accused to whom punishment was incurred. 

Regardless of all these observations, I must say Article 20(1) safeguard the spirit of the constitution alive, provided with various judicial pronouncements provided justice to the victims and the prospective victims. In order to ensure peace, sovereignty in society, equity, justice and good conscience is an essential requirement on part of the judiciary. 

Conclusion 

Provision of ex-post-facto laws was also considered as one of the privileges available to legislators but because of developments, research & analysis in the law field it is not anymore easy for lawmakers to abuse or use it according to their convenience. The Supreme Court of India has played a very vital role in ensuring the protection against such potential maltreatment of the principle. It is also correct to say that till now it is not enough to think that we are now secure against such misuse but it is the prudent need to ponder over the probable threats which may arise with new advancements in the field of law.

Suggestions

1. It is correct to say that an accused can take protection under art 20(1) but before taking protection he must undergo a trial. Through his conducts in court during the trial it was identified & proved by way of evidence that a person has committed wrong intentionally. Later during conviction all essentials of art 20(1) were fulfilled therefore the person took protection under Art. 20(1) & got discharged.
My suggestion is the way we have provisos (restrictions) in various other articles, for e.g. – Art 19(1)(a) holds restrictions under art 19(2). The same way we can have proviso under Art 20(1) in which- ‘if any person against whom it is proved by way of evidence during the trial that such person has committed any malafide act intentionally and that particular act was harmful to society at large or hamper individual dignity or integrity then that person shall not get the protection of Art 20(1).’

There should be certain essentials under proviso and when such prove then only the person held liable. Such as-
a.  Act was done with a malafide intention.
b.  Such an act must not be done/ performed by the whole of the nation i.e. it is based on individuals or groups.
c. It must lower the dignity or integrity of individuals or hamper society at large.

E.g. – let’s understand this by example of demonetization and harassment of women at the workplace.

In case of demonetization, people who saved currency of 500/100rs which later become illegal don’t have any malafide intention for doing so, such act was performed by whole nation (15), & this act doesn’t lower the dignity of individual or group of people, so proviso of art 20(1) is not applicable on this case, therefore, an individual can take protection under Article 20(1). 

In another case of sexual harassment at workplace, any colleague may cause intentional sexual abuse to any other women, such act lowers the integrity of such women and this act is not done by all the member of society. So, all provisos of art 20(1) are fulfilled therefore individuals can’t take protection u/A 20(1).

This is how the proviso in Sec 20(1) is applicable. Such proviso must add under this article so that the actual wrongdoer shall not take the protection.

The reasoning behind this suggestion is – knowing the fact that intentionally the wrong has been committed, still allowing accused to enjoy the protection of Art 20(1) is not correct. There are convicted accused that was innocent but wrongfully dug into criminal matters, isn’t it wrongful if we are punishing innocent and leaving the accused who intentionally committed the wrong. Accordingly to my perspective, this is inequality. That’s why some proviso u/A 20(1) should be added so that intentional wrongdoers must be punished.

2. Art 20(1) provides protection in conviction or sentence, not in the trial. Ultimately the judge has to release the accused underArt 20(1) then why he needs to address such a case whose conclusion is acquittal/ release. 

My suggestion is judiciary is already overburdened with cases so to redress this issue we should appoint any tribunal or committee who directly deal with such matters. Work of committee/tribunal is to identify during trial whether the person has done something wrong intentionally and lie into the scope of proviso of Art 20(1) which I mentioned above (1st point) and then proper judgement should be given. If a person took protection under art 20(1) then such authority would deal with the case and redress the same. Such courts can have the power of criminal courts. Due to this conduct, the courts who were burdened with these issues will not have to deal with them anymore which will help the judiciary to focus on other important cases. 

References

  1. Universal Declaration of Human Rights | United Nations
  2. The Constitution of the United States (usconstitution.net)
  3. European Convention on Human Rights (coe.int)
  4. International Covenant on Civil and Political Rights – A/RES/21/2200 A Annex 2 – UN Documents: Gathering a body of global agreements (un-documents.net)
  5. Held points what can be amended in Ex Post facto laws, Calder v. Bull 3 U.S. (3 Dall.) 386 (1798), Suri Ratnapala, REASON AND REACH OF THE OBJECTION TO EX POST FACTO LAW, research paper, Paper 2 on ex post facto laws.pdf (sharepoint.com), ISBN No: 978-81-928510-1-3
  6. No person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence, Article 20 in The Constitution Of India 1949 (indiankanoon.org),  Pulin k Dutt vs. Satya Ranjan Bhattacharjee AIR 1953; nikitavaidya19, Protection against Ex-Post Facto Laws, legal services India, Protection against Ex-Post Facto Laws (legalservicesindia.com)
  7. Shiv Bahadur Singh Rao V. state of U.P, AIR 1953 SC 394, Subodh Asthana, 2020, Protection in respect of Conviction for Offences: Blend of Constitutional & Procedural Laws, ipleaders, constitutional law, Protection in respect of Conviction for Offences: A Constitutional Blend (ipleaders.in)
  8. Kedarnath vs. state of West Bengal AIR (1953)
  9. Pre-existing laws cannot be struck down for the only reason that it was created before the enactment of the constitution. The intention of each and every statute must be taken into consideration along with its impact before declaring the law as invalid and unconstitutional. Jagruti Dekavadiya, Protection against Ex Post Facto Laws and Indian Legal Scenario, Medico-legal in India, Protection against Ex Post Facto Laws and Indian Legal Scenario (legalserviceindia.com)
  10. Keshavanan Madhavan Menon v. the State of Bombay (1951)
  11.  R.S. Joshi v. Ajit Mills Ltd 1977
  12.  Shiv Dutt Rai Fateh Chand v. Union of India, AIR 1984 SC 1194
  13. Cf. Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923
  14. In G.P. Nayyar v. State (Delhi Administration) AIR 1979 602
  15. Every person has the currency of 500rs. or 1000rs. or both 

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