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Published : August 05, 2010 | Author : nikitavaidya19
Category : Constitutional Law | Total Views : 8191 | Unrated

nikita vaidya I am a student of National Law University, Lucknow

Protection Against Ex-Post Facto Laws

Rights which are essential or fundamental for the well-being of a person are called Fundamental Rights. The Fundamental Rights in India enshrined in the Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or sex. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.

Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it.

What is an ex post facto law?
An ex post facto law (from the Latin for "after the fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali, particularly in European continental systems.

Provisions In Other Constitutions
· U.S Constitution: In the United States, the federal government is prohibited from passing ex post facto laws by Article I, section 9 of the U.S. Constitution and the states are prohibited from the same by clause 1 of section 10. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to amendment. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

· Irish Constitution: The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitution of the Republic of Ireland. Retroactive changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right.

· Japanese Constitution: Article 39 of the constitution of Japan prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan further state that if a new law comes into force after the deed was committed, the lighter punishment must be given.

· U.K Constitution: In the United Kingdom, ex post facto laws are strictly frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex post facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.

Ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but parliamentary sovereignty, in theory, takes priority even over this.

Universal Declaration of Human Rights and related treaties

Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offense. It does however permit application of either domestic or international law.

Article 15, paragraph 1 of the International Covenant on Civil and Political Rights nearly mirrors the language used by the Universal Declaration of Human Rights, replacing the term 'penal offense' with 'criminal offense'. It also adds that if a lighter penalty is provided for after commission of the offense, that lighter penalty shall apply. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal under according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "...for the most serious crimes in accordance with the law in force at the time of the commission of the crime...."

Indian Constitution
Article 20(1) :
“ no person shall be convicted of any offence except for violation of a law in force at that time of the commission of the act charged as an offence , nor be subject to a penalty greater than what might have been inflicted under the law in force at the time of the commission of the offence..”

1. A sovereign legislature has the power to enact prospective as well as retrospective laws , as is provided in article 245 of the Indian constitution , but the present article sets two limitation upon the law making power of every legislature authority in India as regard retrospective criminal legislation .

It prohibits:
(i) the making, of ex post facto criminal laws[1] ie making an act a crime for the first time and then making that law retrospective [2]
(ii) The infliction of a penalty greater than that which might have been inflicted under the law which was in force when the act was committed.

1. This point can be explained through a case law .The accused committed an offence in 1947 , which under the act then in force was punishable by fine or imprisonment or both . the act amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence . The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended act. [3]

2. The prohibition of the clause is not only against the passing of such retroactive law but also against the conviction under such law.[4]

(a) there is nothing in this clause which creates a vested in any course of procedure .hence, art 20(1) does not bar the trial of the accused by a procedure other than that which existed when the offence was committed , provided the change in the procedure is not of such a nature as to constitute a new offence or a penalty greater than that which could be inflicted at the time when the offence had been committed.[5]

(b) Nor has it any application to a law which merely mollifies the rigours of the criminal law[6]
A boy of 16 yrs of age was found guilty of an offence and was awarded a rigorous imprisonment of 6 months and also imposed a fine on 31-5- 1962. his appeal was dismissed by the sessions judge on 22-9-1962 and by the high court on 27-9-1962. the probation of offenders act came into force on 1-9-1962 . no plea was taken before the high court that the boy should be given benefit of the act. Later he filed an appeal in the supreme court by special leave and it was argued that he should be given the benefit of the act . government argued that the act is not retrospective and the offence was committed much before the act came into the force . But sc observed that “ an ex post facto law which only mollifies the rigours of a criminal act does not fall within the said prohibition. If a particular law makes provision to that effect though retrospective in operation ,it wall be valid. The court therefore ruled that the rule of beneficent construction required that even an ex post facto law of the type involved here ought to be applied to reduce the punishment of the young offender.

(c) The statute should be properly constructed before applying this code .

There was a case which discussed the validity of the law that was passed for fixing rates of minimum wages retrospectively as per the Minimum Wages Act, 1948 – The Court ruled that on a proper construction of Sections 3 and 4 of the impugned Act, the attack on the validity of the section on the ground of a contravention of Article 20(1) of the Constitution would be failed –Also, on a proper construction of Sections 3 and 4 of the impugned attack on the validity of the section on the ground of contravention of Article 20(1) of the Constitution must fail[7]

(d) The clause has no application to a civil liability unless the statute makes the failure to discharge such liability an offence

As in this case, an act was passed in june in 1957 impose on the employers closing their undertakings a liability to pay compensation to their employees since November 28 1956,. This liability could be enforced by coercive process leading to imprisonment in case of failure to discharge it. The supreme court held that the liability imposed by the laws was a civil liability which was not an offence under and so article 20(1) could not be apply to the liability for the period November 28 ,1956 to june 1957.[8]

“Shall Be Convicted”:
1 What is prohibited under clause I is only the conviction and not the trial thereof. Hence the trial under the procedure different from what has been obtained at the time of the commission of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. A person accused of the commission of the offence has no fundamental right to trial by a particular court or by a violation of any other fundamental right may be involved.[9] In short the prohibition under this clause does not extend to merely procedural laws[10] , and a procedural law would not contravene art. 20(1) merely because retrospective effect is given to it.[11]

2 The prohibition is only against prescribing judicial punishment with retrospective effect. it does not prohibit the enforcement of any other sanction by a civil or revenue authority , e.g the loss or deprivation of any business or forfeiture of property [12] or cancellation of naturalization certificate by reason of act committed prior to the operation of the penal law in question or the imposition of some statutory penalty , to enforce a civil liability [13]

3 The words convicted and offence make it clear that the article has no application to preventive detention or an order of externment but deals with punishment for offences and provides two safeguard in relation thereto: namely-

(i) That no one shall be punished for an act which was not an offence under the law in force, when it was committed.
(ii) That no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed .

4 On the other hand the prohibition under the present clause is not confined to the passing or the validity of the law , but extends to the conviction or the sentence based on its character as an ex post facto law . the clause therefore must be taken to prohibit all the convictions or subjections to penalty which take place after the commencement of the constitution in respect of an ex post facto law whether the same was a post constitution or a pre constitutional law.[14]

1 for the application of article 20(1) there should be an ‘offence’

2 There being no definition of offence in the constitution. The definition in section 3 (37) of the general clauses act is to be applied. it is therefore ,means an act or omission which is punishable by any law by the way of fine imprisonment or death . but unless there is a law forbidding the doing or the omission to do something , no question of ‘punishment’ comes.[15]
Hence where a law of irrigation provides for the levy of a special rate of unauthorized use with retrospective effect , it cannot be held that the legislature was imposing a higher penalty in contravention of article 20(1) , inasmuch as there was no law prohibiting the use of water and no ‘punishment’ for an ‘offence’.[16]

3 What this clause prohibits is the creation of a new offence with retrospective effect. It does not prohibit the creation of a new rule of evidence or a presumption for an existing ‘offence’. [17]

4 In absence of any evidence to show that the offence was committed, the conviction could not be sustained.[18]

‘Law In Force’
1. This expression refers to the law factually in operation at the time when the offence was committed and does not relate to law ‘deemed to be in force’ by the retrospective operation of a law subsequently made.[19] Article 20(1), in fact, controls the power of the legislature to enact such retrospective legislation so far as the punishment for crimes is concerned.

2. The law for the violation of which a person is sought to be convicted must have been in force at the time when the act with which it is charged was committed . it follows , therefore, that a person cannot be convicted for an act , which was not an offence under the law which was in force when that act was committed.[20]
3. but the rules and regulations made under a statue which is repealed but continued in force under s. 24 of the general clauses act are ‘ laws in force’ within the meaning of the article 20(1). [21] The result is the same when a repealed act is revived.

4. An employee of a bank of cochin was served with charge sheet but subsequently the having been amalgamated with the state bank of India, penalty was imposed on him under the rules of the SBI. It was held that the penalty could be imposed under the rules of the bank of cochin [22]

‘Penalty Greater Than That Which Might Have Been Inflicted’
These words lays down the second prohibition contained in the clause . a person may be subjected to only those penalties which were prescribed by the law which was in force at the time when he committed the offence for which he is being punished . if an additional or higher penalty is prescribed by any law made subsequent to the commission of the offence , that will not operate against him in respect of the offence in question. But the article does not prohibit the substitution of a penalty which is not higher or greater than the previous one [23] or the mollifications of the rigours of criminal law.[24]It has been mentioned that no greater penalty has been imposed by the later law , in the following cases Where the general law prescribes an unlimited fine ,and a later special law specifies a minimum amount less than which a sentence of fine cannot be imposed in a case of conviction . [in the case the specification of minimum does not impose a “greater” penalty because the general law was silent as the extent of the penalty which could be awarded.]

1 penalty means punishment for the offence and would not include any other remedial measure provided for removing the mischief, ex. Summary eviction of a landlord who has contravened the provisions of a rent control law; or the civil liability to pay an enhanced water rate in case of an unauthorized use of water, forfeiture of property to recover embezzled money.

2 On the other hand, the following are ‘penalty’ for the purposes of this article-

forfeiture of property under section 53 , IPC, ordered by a court trying an offence
compensatory fine under s. 9(1) of the west Bengal cr. Law amendment (special courts) act , 1949
liability for compensation under s. 25FFF of industrial disputes act ,1974
special rates under s. 31 of the northern India canal and drainage act ,1873

Tada Act

The express provisions contained in article 20(1) is not a bar for restoring to the corresponding sub sections of the TADA act , 1987.[25]

The right to protection from retrospective criminal law is well recognized throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been made. Fortunately the Indian constitution protects us from ex post facto laws.

Article 20(1) is truly a blessing to all of us. An act done innocently by an individual in the past, which is illegal in the present, the state cannot prosecute the individual as it is against the principle of natural justice because the individual when committing the act couldn’t have reasonably or by any other method come to know that the act would become illegal in the future. Thus criminal laws with retrospective effect are totally absurd, unfair and unjust. Having criminal laws with retrospective effect is against the right to life because when the person commits certain act and later on that act becomes a crime so if criminal laws with retrospective effect exists then that person would be held liable even though he committed the act innocently. So punishing a person who has committed an act innocently is against right to life.
[1] Nayyar , G.P. V. Delhi Admin. AIR 1979 SC 602 (Para 7)
[2] Shiv bahadur singh rao V. state of U.P. , AIR 1953 SC 394
[3] Kedar nath v. state of west Bengal, AIR 1953 SC 404
[4] Ibid 3
[5] Nayyar , G.P. V. state of U.P. , AIR 1979 SC 602
[6] Rattan lal V. state of Punjab , AIR 1965 SC 444
[7] Cf. Narottamdas V. state of M.P. , 1964 (1) SCR 820, AIR 1964 SC 1667
[8] Cf. Hathising Mfg. Co. V. union of India, AIR 1960 SC 923
[9] Shiv bahadur singh rao V. state of U.P. , AIR 1953 SC 394
[10] ibid
[11] ibid
[12] Brij bhukan kalwar V. S.D.O siwan , AIR 1955 Part 1 .
[13] Shiv dutt rai fateh chand V. UNION OF INDIA , AIR 1984 SC 1194
[14] Shiv bahadur singh rao V. state of U.P , AIR 1953 SC 394
[15] ibid
[16] Jwala ram V. state of pepsu, AIR 1962 SC 1246
[17] Sajjan singh V. state of Punjab , AIR 1964 SC 464
[18] Kalpnath rai V. state, (1997) 8 SCC 732
[19] Shiv bahadur singh rao v. state of u.p
[20] Pulin k dutt v. satayaranjan bhattacharjee,AIR 1953, cal 599
[21] Chief inspector of mines v. thapar karan chand, AIR 1961 SC 838
[22] State bank of India v. T.J Paul , AIR 1999 SC 1994
[23] sawant singh v. state of Punjab, AIR 1960 SC 266
[24] Rattan lal v. state of Punjab, AIR 1960
[25] State v. gian singh , (1999) 9 SCC 312 para 4

Authors contact info - articles The  author can be reached at: nikitavaidya19@legalserviceindia.com

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