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Retrospective Operations of Criminal Law

Written by: Nikit Bala is presently doing his B.A.L.L.B course in HNLU,Raipur ( second semester). His hobbies include debating, swimming and fine arts.
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The essentiality of a right to protection from retroactive criminal law has generally been accepted without argument. Literature on the justification for the principle is scarce. Yet, it has become well accepted that individuals have such a right. The principle has been enunciated in various declarations of human rights from 1789 until the present. Nevertheless, there are several examples in international, Australian and British law where the principle has been ignored or (at the very least) circumvented.

Three examples of retrospective law-making are mentioned below: the Nuremberg trials of the late 1940s; the decision of the House of Lords in Shaw v. Director of Public Prosecutions in 1961; and the Commonwealth's "bottom of the harbour" tax legislation of 1982. In each case, the actions of the defendants were considered so morally repugnant that the principle of non-retroactivity was relaxed so as to allow them to be punished. These examples differ in the extent to which the retrospective aspect of each has been accepted: the Nazis tried at Nuremberg are generally said to have been adjudged fairly; the decision in Shaw's case has been criticized widely; and the "bottom of the harbour" tax legislation has attracted both critics and champions.

The fundamental question raised by these three examples is this: is the right to protection from retroactive criminal law an absolute human right, or should its application be qualified by reference to the circumstances in each case? Despite the criticism that these examples provoked, none of them could easily be characterized as a miscarriage of justice. But, in each instance, the defendants were punished for committing acts which were not criminal at the time that they committed those acts: they were found guilty retrospectively. Clearly, then, the right to protection from retroactive criminal law is not an absolute human right but it is a qualified human right.

Retrospective Operation of Criminal Law

Retrospective operation is an inaccurate term and open to various interpretations. The best instances of retrospective laws are those in which the date of commencement is earlier than the enactment or which validates some invalid law; otherwise every states effects rights which would have been in existence but for the statute. A statute does not become a retrospective one because a part of the resiqute for its action is drawn from a time antecedent to its passing All what it means is that save in cases where that creates a new offence or increases a penalty , a legislature is not prevented from enacting an ex post facto law but if any such law takes or impairs any vested right acquired under an existing law or creates a new obligation, impose a new duty or attaches a new disability in respect to the transactions on considerations already past, it must so provided in express terms o such should be a necessary implication from the language employed.

The word ‘retrospective’ is somewhat ambiguous . It literally means looking backwards; having reference to a state of things existing before the Act in question. A retrospective statute contemplates the past and gives to a previous transaction some different legal effect from that which it had under the law when it occurred or transpired. Every statute which takes away or impairs a vested right acquired under existing law or creates a new obligation, imposes a new duty or attaches a new disability in respect of transactions or considerations already past must be deemed to be prospective.

A retrospective law is one which reaches back and gives to a prior transaction some different legal effect from that which it had under the law when t took place . If an act provides that as at a past date the law shall be takes to have been that which it was not, that Act is deemed to be retrospective.

Corpus Juris defines it thus: Literally defined, a retrospective law is a law that looks backward or on things that are past; and a retroactive law is one that acts on things that are past. In common use, as applied to statutes, the two words are synonymous, and in this connection may be broadly defined as having reference to state of things existing before the act in question. A retrospective law in legal sense is one that takes away or impairs vested rights acquired under the existing laws or creates a mew obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already past.

No Retrospective Effect

Ordinarily, a canon of interpretation of penal legislation does not permit penal provisions to have retrospective effect. It is true that on case of statutes of a penal character which create certain offences and make certain acts punishable as such offences for the first time , no proceedings under them are generally maintainable in respect to acts done before the commencement if the statute. The reason is plain. First of all the doer cannot be imputed with the element of mens rea which is ordinarily the principal ingredient for the proof of guilt. Further to punish a person for his act which was then not an offence under a subsequent legislation which came in to operation after the said act will per se unconscionable besides amounting to negation of fair play and justice.

It is true that mens rea is an essential ingredient of a criminal offence. But a statue may exclude the element of mens rea from the offence created by it. It is only where it is absolutely clear that the implementation of the object of the statute would other wise be defeated that mens rea may by necessary implication be excluded from a statute. Of course the nature of mens rea that would be implied in a statute creating an offence depends on the object of the act and the provisions thereof . There were some changes in the export and import policy for the period o1984-85. In Collector of Customs, Bombay v East Punjab Traders & Ors, it was held that such a change couldn’t be give retrospective effect since it would lead to penal consequences against the importers. It was further held that the consequences of this interpretation would lead to certain penal liabilities in regard to payment of penalty etc, and therefore an entry prescribing the limit of the width has to be read retrospectively.

Ex -Post -Facto Laws

Ex post Facto laws is used in several different senses,
# an act may be called retrospective because it affects existing contracts as from the date of its coming in to operation
# it may be more properly described as retrospective because it applies to the actual transactions which have bee completed or to rights and remedies which have already accrued
# Or it may apply again to such matters as procedure and evidence and in each of these matters retrospective legislation has a different effect.
The term retroactive and retrospective are synonymous in judicial use and may be employed interchangeably. The term ex post facto used with respect to law signifies something done so as to affect another thing that was committed before , in other words, refers to the law which affects the transaction after its happening.

Rule of questionable policy

Retrospective laws are as a rule of questionable policy and contrary to general principles that legislation by which the conduct of mankind is to be regulated ought to deal with future acts and ought not to change the character of past transactions carried upon the faith of the then existing law.

Sutherland says” n dealing with the problem of retroactivity, it is extremely difficult to establish definite criteria upon which courts decisions can be foretold. A statute must not act unreasonably upon the rights of those to whom it applies , but what is reasonable and what is unreasonable , is difficult to state in advance of actual decisions… the method to be pursued is not the unerring pursuit of a fixed legal principle to an inevitable conclusion. Rather it is the method of intelligently balancing and discriminating between reasons for and against.

Protection Against Ex Post Facto Laws
An ex post facto law is a law which imposes penalties retroactively that is upon acts already done, or which increases the penalty for the past acts . Suppose a person does an act in 1954 which is not then unlawful. A law is passed inn 1956 making that act a criminal offence and seeking to punish that person for what he did in 1954. Or, suppose punishment prescribed is increased in 1955 to imprisonment for a year and made applicable to the offences committed before 1955.these are both examples of ex post facto laws. Such laws are regarded as inequitable and abhorrent to the notions of justice and therefore there are constitutional safeguards against such laws.

Article.20 (1) provides the necessary protection against an ex post facto law. Under the first part, no person is to be convicted of an offence except for violating a law in force at the time of commission of the act charged as an offence. A person is to be convicted for violating a law in force when the act charged is committed. A law late enacted, making an act done earlier (not an offence when done) as an offence, will not make the person liable for being convicted under it . Immunity is thus provided to a person from being tried for an act under a law enacted subsequently, which makes the law unlawful . This means if an act is not an offence on the date of its commission, a law enacted in future cannot make it so.

This proposition is illustrated by the following fact situation:
S.304B, IPC , was enacted on 19-11-1986 making a dowry death punishable as an offence under the penal code. Anew offence has thus been inserted in the IPC with effect from 19-11-19886.Because of Article 20(1), S.304B cannot be applied to a dowry death which took place in 1984, i.e. prior to its enactment.S.304B is a substantive provision creating a new offence subsequent to the commission of the offence attributed to the respondent in the instant case and so he could not be tried under section 304B. The word ‘offence’ used in article 20 is not defined in the constitution. S.3 (38) of the general clauses act defines ‘offence’ as any act or omission made punishable by any law for the time being in force. The immunity of against retrospective laws extends only against punishment by courts for a criminal offence under an ex post facto law and cannot be claimed against prevention detention, or demanding a security from a press under a press law , for acts done before the relevant law is passed.

Art.20 (1) doesn’t bar a civil liability being imposed retrospectively. An act passed in June, 1957, imposed 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 law was a civil liability which wasn’t an offence and Art, 20(1) could not apply to thee liability for the period November 28, 1956 to June 1957.

What is prohibited under Art 20(1) is only conviction or sentence but not trial, under an ex post facto law. The objection doesn’t apply to a change of procedure or of court. A trial under a procedure different from w what obtained at the time of the commission of the offence, or by a court different from that which had competence at the time cannot ipso facto be held unconstitutional. A person being accused of having committed an offence has no fundamental right of being tried by a particular court any constitutional objection the way of discrimination or violation of any other fundamental right may be involved.Art20(1) does not make a right to any course of procedure a vested right. Thus a law which retrospectively changes the venue of trial of an offence from a criminal court to an administrative tribunal is not hit by Art20(1).

In order to punish corrupt government officers, Parliament has enacted the prevention of corruption act which creates the offence of criminal misconduct.S.5 (3) creates a presumption to the effect that if the government servant for corruption has in possession property or assets which was wholly disproportionate to his known sources of income and if he cannot explain the same satisfactorily, then he is guilty of criminal misconduct.

S.5 (3) was challenged before the supreme court in Sajjan Singh v. State of Punjab Vis a Vis Art 20 (1). It was argued that when S.5(3) speaks of the accused being in possession of pecuniary resources, or property disproportionate to his known sources of income,, only the pecuniary resources or property acquired after the date of the act is meant. To think otherwise would be to give the Act retrospective operation and for this there is no justification. The Supreme Court rejected the contention to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf, which are acquired before the date of the act is in anyway giving the act a retrospective operation.

The court explained its position as follows, a statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecede to its passing. The court also rejected the contention that S.5 (30 creates a new offence in the discharge of official duty. The court further stated: “It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in S5 (1) for which an accused is already under trial…When there is such a trial which necessarily must be in respect of acts committed after the Prevention of Corruption Act came in to force, S.5 (3) places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged.”

A person can be convicted and punished under a law in force which means a law factually in existence at the time the offence was committed. A law passed on September 30, but act committed on August 1, cannot be taken to be a law in force on August 1, and so an act committed an August 1, cannot be punished there under. A law not factually in existence at the time enacted, subsequently , but by a legislative declaration deemed to have become operative from an earlier date , cannot be considered to be a law ‘factually’ in force earlier than the date of its enactment and the infirmity applying to an ex-post-facto law applies to it. The reason is that if such a fiction were accepted and a law passed later were to be treated as a law in existence earlier , the whole purpose of protection against an ex-post-facto law would be frustrated, or a legislature could give a retrospective operation to any law.

A slightly different situation is presented by the following fact situation .A law was made in 1923 and certain rules were made there under. The Act of 1923 was replaced in 1952 by another act, but the old rules were deemed to be the under the new Act as well. As these rules have been operative all along and did not constitute retrospective legislation, an offence committed in 1955 could be punishable under them as these were in factually in existence at the date of the commission of the offence.

When a later statute again describes an offence created by a statute enacted earlier and the later statute imposes a different punishment, the earlier statute is repealed by implication. But this is subject to Art.20 (1) against ex-post-facto law providing for a greater punishment. The later act will have no application if the offence described therein is not the same as in the earlier act, i.e., if the essential ingredients of the two offences are different. If the later act creates new offences, or enhances punishment for the same offence, no person can be convicted under such an ex-post-facto law nor can the enhanced punishment prescribed in the later act apply to a person who had committed the offence before the enactment of the later law.

Further what Art. 20(1) prohibits is conviction and sentence under an ex-post-facto law for acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a difference between the Indian and the American positions on this point. Whereas in America, an ex-post-facto law is in itself invalid, it is not so in India. The courts may also interpret a law in such a manner that any objection against it of retrospective operation may be removed.

Nowhere through out the world has it been written that any action is good or bad. Certain actions of man in one era are considered good and in another bad. Certain actions are considered to be legal at one time and illegal at another. It is this inconsistency in man to decide what is good and bad that has become the reason to have immunity from ex post facto laws. An act that was thought innocent at one time is no longer innocent today but is illegal. These changing circumstances have lead to wrongful punishment of many innocent individuals. Thus the right to protection from laws with retrospective effect must be granted to all and must be made a universal right.

The right to protection from retrospective criminal law is well recognised 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.

# Principles of Statutory Interpretation –Justice G.P.Singh
# The Interpretation of Statute-Professor T.Bhattachryya
# Constitutional law of India–M.P.Singh
# N.S.Bindra’s Interpretation of Statutes-Markandey Katju and S.K.Kaushik

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