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Protection against Ex Post Facto Laws and Indian Legal Scenario

Written by: Jagruti Dekavadiya - 2nd year student of B.A.LL.B. (Hons.), Nirma University Institute of Law, Ahmedabad
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In this creation of god, who knows what is going to happen the next day? It is settled principle that for the action one is going to get the reaction but nowhere in any document or any scriptures is the action defined. 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. For what reason and how the ex post facto laws are justified and if not then what is the remedy for protection against such ex post facto laws. How the Supreme Court the final pedestrian of the justice has played its role in providing the protection against ex post facto laws? All these questions have been answered by this paper. This paper deals specially with the Indian scenario in providing protection against ex post facto laws.

Is Ex post Facto Laws are Laws?

An ex post facto law (from the Latin for “from something done afterward”) 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.[1] According to me ex post facto laws are laws that, retrospectively increase punishments for existing offences, Laws that do not directly punish persons but which create new liabilities for past conduct as judicially determined, Laws that retrospectively remove defenses or exceptions to civil or criminal liability. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. At this point of time question comes in the mind that is ex post facto law is law? If it’s not a law then what is the mechanism for protection against such laws.

Moral objections against ex post facto laws?

Suppose a person does an act in 1990 which is not then unlawful. A law is passed in 1992 making that act a criminal offence and seeking to punish that person for what he did in 1990. Or suppose, punishment prescribed is increased in 1992 to imprisonment for a year, and is made applicable to the offences committed before 1992. These both are the examples of the ex- post facto laws. Such laws are regarded as inequitable and abhorrent to the notions of justice.

Safeguards against the ex post facto laws:

The moral objection to ex post facto law is not founded on constitutional pragmatics but on the most fundamental demand of the rule of law that a person is subject only to established and known law. Accordingly, Art 15(1) of the United Nations Covenant on Civil and Political Rights (ICCPR) condemns laws that hold a person ‘guilty of any criminal offence on account of any act or omission, which did not constitute a criminal offence, at the time when it was committed or impose a heavier penalty than the one that was applicable at the time when the criminal offence was committed’[2]

Indian Constitution and ex post facto laws:

Article 20(1) of the Indian constitution provides necessary protection against ex post facto law. Art. 20(1) has two parts. Under the first part, no person is to be convicted of an offence except for violating ‘a law in force’ at the time of the commission of the 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 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.[3] The second part of Art. 20(1) immunizes a person from a penalty greater than what he might have incurred at the time of his committing the offence. Thus, 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.[4] What is prohibited under Art. 20(1) is only conviction or sentence, but not trial, under an ex-post-facto law. The objection does not apply to a change of procedure or of court. A trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence ate then 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 or procedure, except in so far as any constitutional objection by way of discrimination or violation of any other fundamental right may be involved.[5]

Verdicts of Supreme Court and Ex Post Facto Laws:

Supreme Court of India has played an important role in exploring as well in interpreting the doctrine of ex-post-facto law. Apart from above mentioned cases there are several cased in which apex court has dealt with the questions regarding operation of such laws. In R.S.Joshi v. Ajit Mills Ltd [6] Supreme Court said that Art.20 relates to the constitutional protection given to persons who are charged with a crime before a criminal court. The word ‘penalty’ in Art. 20(1) is used in the narrow sense as meaning a payment “which has to be made or a deprivation of liberty which has to be suffered as a consequence of finding that the person accused of a crime is guilty of the charge.

The immunity extends only against punishment by courts of a criminal offence under as ex-post-facto law, and cannot be claimed against preventive detention, or demanding a security from a press under a press law, for acts done before the relevant law is passed. Similarly, a tax can be imposed retrospectively.[7]Imposing retrospectively special rates for unauthorized use of canal water is not hit by Art. 20(1).[8]

Art. 20(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 Art. 20(1).[9] A change in court entitled to try an offence is not hit by Art. 20(1).[10] Similarly, a rule of evidence can be made applicable to the trial of an offence committed earlier.

In order to punish corrupt government officers, parliament has enacted the preventive of corruption Act which creates the offence of criminal misconduct. S. 5(3) crates a presumption to the effect that if the government servant for corruption has in his possession property or assets which were 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 Supreme Court in Sujjan Singh v. State of Punjab [11] vis-à-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 that 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 any way giving the Act a retrospective operation. The court explained the position as follows: “the statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to its passing”.

The court also rejected the contention that S. 5(3) crates a new offence in t he discharge of official duty. According to the court S. 5(3) does not create a new offence. The court stated further: “it merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in S. 5(1) for which an accused person 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 into force, S.5 (3) places in the hands of the prosecution a news 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 not factually in existence at the time, enacted subsequently, but by a legislative declaration ‘deemed’ to have become operative from an earlier date (by a fiction of law), 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, then the whole purpose of the protection against an ex-post-facto law would be frustrated, for a legislature could then 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 rules under the new Act as well. As these rules had been operative all along and did not constitute retrospective legislation, an offence committed in 1955 could be punishable under them as these were factually in existence at the date of the commission of the offence.[12]

When a late statute again describes an offence 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 that 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 her 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.[13]

Further, what Art. 20(1) prohibits is conviction and sentence under as 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.[14] In lily Thomas v. Union of India[15] it was argued that the law declared by the Supreme Court in Sarla Mudgal could not be given retrospective effect because of Art. 20(1); it ought to be given only prospective operation so that the ruling could not be applied to a person who had already solemnised the second marriage prior to the date of the Sarla Mudgal judgment[16].

However, Supreme Court rejected the contention arguing that it had not laid down any new law in Sarla Mudgal. What the court did in that case was only the law which had always been existence. It is the settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because the Court does not legislate but only interprets existing laws.

Indians are blessed against the application of ex post facto law as Indian judiciary has provide protection and a strong safeguard against ex post facto laws and Indian Constitution is itself a law against such laws. I am of the opinion that in those countries where such protective clause has not been incorporated in its constitutions they have problems provided their judiciary is not taking the same in to consideration. I personally believe that Indian Judiciary has completely justified the application of Art. 20 (1) of the Constitution of India which also reflects in the pronouncement of the Supreme Court verdicts. At the same time Supreme Court has also use some of them to provide justice to the victims also. So it can be concluded that in India every action if legally and justifiably defined and so what today morally wrong in Indian will be morally wrong forever provided it is according the principle of natural justice.

End Notes:
1. Black. Black's Law Dictionary. West Group, 2007.
2. Datar, Arvind P. Commentary on the Constitution of India. Nagpur: Lexis nexis, 2007.
3. Jethi, Mishita. "The Modern day Critique of Rule of Law.", 2008.
4. P.Jain, M. The Constitutional Law of India. Nagpur: Lexis nexis, 2008.
5. Ratnapala, Suri. Reasons and Reach of the objection of the ex post facto laws. Australia, January 23 January 2008, 2008.
6. Selinger, Steve. "The Civil Case against Ex Post Facto Laws." Cato Jouranal, 1996: 2-15.

1. Black. Black's Law Dictionary. West Group, 2007.
2. ICCPR, 1966
3. Kanaiyalal v. Indumati, AIR 1958 SC 444: 1958 SCR 1394.
4. Wealth Tax Commr. Amritsar v. Suresh Seth, AIR 1981SC 1106
5. Black. Black's Law Dictionary. West Group, 2007.
6. AIR 1977 SC 2279
7. Sunderaramier &Co.v.State of Andhra Prades, AIR 1958 SC 468.
8. Jawala Ram v. Pepsu, AIR 1962 SC 1246.
9. Union of India v.Sukumar, AIR 1966 SC 1206.
10. Shiv Bahadur v. Vindhya Pradesh, AIR 1953 SC 394.
11. AIR 1964 SC 464
12. Chief Inspector of Mines v. Karam Chand Thapra, AIR 1961 SC 838.
13. T.Barai v. Henry Ah Hoe, AIR 1983 SC 150.
14. Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat.69.
15. AIR 1995 Sc 1531
16. AIR 2000 Sc 1650

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